Ownership of knowledge: Is there a natural right to 'Intellectual Property'?

Kristian Lund - Ownership of Knowledge Page 1/67

Table of Contents

Introduction 3

The Paper in a Nutshell. 3

Method and Restrictions 3

Terminology. 4

Structure 4

A Commons of Knowledge 6

Introducing the Commons 6

Introduction 6

Structure 6

Applying Locke 7

Locke's Theory of Property. 7

An Example of Knowledge Appropriation 9

'Enough and as Good' 11

A Necessary Precondition 11

The Scarcity of Techniques 12

The Exhaustibility of Data 13

The Commons 15

What We Are Taking Out. 75

What Was There 15

Conclusion 17

The Failures of a Static View 17

Personhood as a Labour Condition 19

Introduction to Personhood 19

The Various Personhood Justifications 19

Locke's Labour Condition 19

Mixing Oneself With Knowledge 19

Intentionality as Labour. 20

Abridging Rights by Contract 21

Introduction 21

The Existence and Characteristics of Unconscionable Contracts 21

Obtaining Use Value or Obtaining Market Value 22

An Analogue Example of Extortion 24

Beyond Intentionality 25

The Failure of Intentionality and Simple Sourcehood. 25

Creativity as Labour. 26

Conclusion 28

No Strong Rights to Universal Ownership 28

Personhood as a Necessity 30

Introduction to Necessity 30

Locke's Necessity Condition 30

What Personhood Rights do Not Imply. 30

Necessary Rights over Knowledge 31

Another Basis for Personhood Rights 31

Privacy and Truth 32

Lies and Misrepresentation 34

Are Such Rights Necessarily Ownership, or Even Knowledge, Rights? 36

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Constricting Rights 37

Free Speech as a Personhood Right and Restriction 37

The Duration of Personhood Rights 38

The InaUenability of Personhood Rights 39

Protection of Personhood Rights by Contract 40

Abridging Others ' Rights for Legitimate Reasons, and Inherent Limitations 40

A Simpler way to Fulfil Personhood Rights, and the Counterarguments which Follow. 41

Conclusion 43

Non-ownership Rights to Knowledge 43

The Commons as an Ecosystem 44

Introducing Ecology 44

Structure 44

The Infrastructure of the Commons of Knowledge 44

Who Has a Right to the Full Societal Use Value? 45

A Necessary Infrastructure 46

Personhood Rights Necessitating a Healthy Commons 46

The Need for Free Languages 47

Can a Proprietary Culture be Free? 47

Intellectual Tools 48

Encumbering the Infrastructure as Unfair and Unnecessary. 49

Securing Societal Use Value by Contract 50

A Fair Request for Compensation 50

The Inherent Damages of Restricting Contracts 50

The Existence of Alternatives to Restrictions 57

The Expansion of the Commons 52

The Speed of Expansion as Guaranteeing Enough and As Good. 52

Measuring the Speed and Comparing Incentive Models 53

Adding a System of Expropriation to Rectify Harms 54

Irreparable Problems of an Ownership Model 55

Conclusion 56

An Efficient Ecosystem 56

Conclusion 58

The Paper So Far. 58

Summary. 58

Conclusions 58

Possibly Ownable Knowledge 59

Trademarks 59

Nonformal Patents 59

'Thin' copyright 61

The Questionable Nature of Intellectual Property' 62

The 'Necessity' of Incentives 62

Perspectives 62

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Introduction.

The Paper in a Nutshell.

In this paper, I will attempt to answer the question of whether we have a natural right to own
knowledge, and secondarily, if we can justly furnish people with a corresponding, justified
privilege. By natural right, I mean a right which we must admit everyone, and by a just privilege I
mean an 'artificial' right which we can choose to extend to people under certain conditions. It will
be shown that there does not exist a property right to knowledge, but that certain other rights do
pertain. It will further be demonstrated that the limitations on property privileges with regards to
knowledge are quite restrictive. I will use a Lockean framework to structure the paper, and bring in
a variety of views from inside and, mostly, outside philosophical academia, where most discussion
of the topic has taken place so far.

Method and Restrictions.

I will primarily use Locke to discuss property in this paper. This is, of course, because I believe his
account of property is rather convincing, although often oversimplified. More importantly, I have
chosen it because of its method; identifying the restrictions we can all agree a property principle
should live up to, as well as the conditions under which we cannot protest. Unfortunately, there is
no canonical prioritisation but much discussion on what conditions are necessary, sufficient or
whether we must somehow add up their strengths to evaluate a given case. It will become clear
throughout the text which conditions I put what trust in, and I will often times submit a given
argument to more than one test. I will argue further for my readings in the second chapter when they
first becomes an issue. It is relevant to point out already, however, that I believe each of Locke's
provisions are relevant and that they together make up his positive argumentation for just
appropriation - that is, he is not only presenting conditions which must be fulfilled, but is reasoning
that we must allow appropriations because of them. I will also bring out a common sense argument
that any rule guiding appropriation and similar systematic laws cannot be 'centric' toward any
particular group, be it based on wealth, age or position in time.

Another important point regarding the paper is that I will not directly address subsequent
expropriations by society. Whether there are situations where a society or private individual can
take away a person's property is not relevant to whether there was a justly granted property in the
first place. The argument is taken up, however, that a mechanism of expropriations can ensure
justice so securely that certain harms trailing ownership of knowledge can be alleviated sufficiently,
in the fifth chapter Another thing this paper is not, is a consequentialist argumentation - as this
would instantly turn the paper into an empirical exploration.

As with expropriation, certain pragmatic arguments do become relevant, however, and I will deal
with them to the degree necessary. I do insist, however, that whether all knowledge is to be free for
all or a type of property is, at heart, a question of values. Although the answer is not necessarily
black and white, and society does not have to either allow or disallow all ownership or control
rights to knowledge, it is a moral and political question in the sense that it is a question about which
kind of society we want, and should be discussed as such.

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Terminology.

A number of terms are important for the paper, and I will briefly sketch their use here. Natural
rights were explained above, but knowledge is equally important. I will not go into metaphysical or
epistemological discussions directly, but present a view of knowledge which I hope allows us to
bring out the right intuitions and clear up the issues. The view taken of knowledge is, initially, a
purely common sense one; knowledge is whatever can be represented and understood, or somehow
used, by us. I take a very inclusive view, in that things which can be represented, even if
incompletely, as knowledge are considered - including language, many abilities and most cultural
artefacts. The first and last categories means that the paper becomes deeply involved with
copyright, especially as it is experienced in the present digital era where most everything can be
expressed in a formal language or represented as data. The term 'information' will be used to bring
out such connotations, but will not be distinguished as separate in the argumentation. I will further
use the term 'personal knowledge' to refer loosely to knowledge which has some intimate relation to
a person, to be explained further as necessary.

It becomes necessary to discuss the matter of ownership not only in the state of nature, but also
within a society. I mostly follow Locke in what this entails, along with the following conceptions of
weak and strong rights: A strong right is a natural right; it cannot be denied justly by individuals or
society, only when absolutely necessary for the preservation of other rights can it be infringed. A
weak right is not necessarily artificial or constructed, but it is relative and only a 'right to trump
others'; I have a weak right to get recognition and renown for this paper, but no demand that society
supply this fame. A just society, then, ensures the former for all, and tries to promote the latter, only
interfering with its natural achievement with good cause. I also use the game theoretical term of
'zero sum'. Situations described as such are cases where one party's loss is necessarily another's loss,
and the total resources competed for are somehow fixed. In situations which are not zero-sum, a just
society should select the policy which maximises resources available overall, and then distribute
those fairly (unless such redistribution is otherwise impossible or defeats the policy in question).

Structure.

As mentioned, I use Locke to structure my paper - this allows an overview of what must be
examined, as it categorises certain conditions for appropriation helpfully. The three conditions are
all pertinent, also as ways to look at other justifications, which I will include as they become
relevant. I also believe that a Lockean justification best fits 'the world of knowledge', and this has
indeed been attempted before. I will follow this direction through the paper; trying to present the
best argument for the ownership of knowledge through the various categories and taking into
account various problems and their possible counterarguments as they appear. In doing so, I may
accede points which are not defensible or otherwise be too lenient in arguing^r ownership of
knowledge, in order to focus on the counterarguments. The basic structure of the paper will be:

A Commons of Knowledge. This chapter will introduce Locke's theory and show how the idea that
we mix our labour with previous knowledge fits the world of knowledge. The chapter will quickly
shift focus to the condition that we leave 'enough and as good' for others in our appropriations, and
this will show the weakness of a static view of the commons of knowledge.

Personhood as a Labour Condition. Here, I will focus on the labour condition, interpreting it
liberally as meaning whatever is used or necessary in oneself to create knowledge. I also introduce
an attempt to bolster a weaker right to full property rights by reducing other's right by contract.

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Personhood as a Necessity. The fourth chapter will deal with the Lockean argument that certain
goods must be appropriated to be used at all; while not convincing regarding ownership as such, it
does establish certain rights. These are attempted as a candidate for getting a fuller version of
ownership off the ground, as in the previous chapter.

The Commons as an Ecosystem. In this part of the paper, I shift entirely to a more dynamic view
of the commons, focusing on its inherent 'infrastructure' and taking up the labour condition again,
while focusing on the condition that we not cause substantial hurt by our appropriations. The
chapter thus revisits the initial focus, and wraps up the contractual attempts to establish ownership,
as well as the most common line of reasoning given, that we are somehow all better off or at least
not hurt by it.

Conclusion. Finally, I end the paper by recounting the various conclusions reached, and examining
in detail the two categories of knowledge we can allow. I end the paper by taking up certain
perspectives on whether such ownership is at all desirable and what the basis for the discussion has
been, is and should be.

Throughout the chapters, the conceptualisation of 'the world of knowledge' will evolve as needed.
From a static idea of an untouched world out there, on par with the physical world, to a more
dynamic view of a commons containing an integral 'infrastructure', moving frontiers of what
various groups know, etc. This will be explained as the changes become necessary for trying to
establish ownership of knowledge, or understand a given argument. As the paper progresses, more
space will be given to specific arguments discounting 'intellectual property', as these must become
more complicated to answer the arguments for and reflect the increased complexity of the
conception of the commons. Also increasing in frequency are real -world examples, which will be
used to explain terms, possible problems or as counterexamples - this culminates naturally in the
conclusion where the implications of the paper on actual policy is discussed.

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A Commons of Knowledge.

Introducing the Commons.

Introduction.

This chapter will begin to elucidate how knowledge can be owned by looking at the 'world of
knowledge' as a simple commons and subjecting it to a Lockean theory of property - using Locke's
theory directly. I will show its strengths and weaknesses, as applied to this conception of
knowledge; it avoids the 'Tragedy of the Commons', but fails in other regards. After attempting to
bolster the theory with various positions and suggestions, I will show that it is untenable. Given the
'simple commons' view of knowledge, a Lockean theory of property will not be able to supply us
any meaningful and just ownership over it.

As the concepts grow inadequate to the task, I shall begin to make important distinctions and refme
the concepts - especially with regards to the 'enough and as good' provision from Locke, the
exhaustibility of the resource and how to properly conceptualize our jointly held 'common' of
knowledge. By showing the theoretical problems inherent in the simpler solutions attempted in this
chapter, I will introduce the necessity of a more sophisticated framework for understanding the
'world of knowledge' with regards to its human use.

Structure.

The structure of this chapter will be dictated primarily by the simplest and strongest critique one can
level at a Lockean property theory; whether appropriations leave 'enough and as good'. Two distinct
directions will be followed: the question of whether there is actually enough of the given resource
after an appropriation, and whether that resource is one which the rest of society has any claim on at
all, i.e. whether it is part of a 'common trust'.

I shall begin by going over Locke's theory, and why it is prima facie useful for explaining property
rights, also over knowledge; this includes an preliminary examination of the provisions Locke
himself mentions. I will then attempt to use the theory 'directly', as if the 'world of knowledge' was
simply another world of appropriable objects; and show what problems this leads to, specifically
how the exclusiveness of property rights renders this attempt unconvincing.
From this, I will go on to discuss the inexhaustibility of knowledge; in what way the world of
knowledge is inexhaustible, and in what way does the theory need it to be. Here, I will take up
Waldron's claim (Tuckness, 2007)' that the 'enough and as good' provision is not a necessary
precondition for just appropriation, and argue that it does not hold for the world of knowledge. This
is followed by a discussion of whether we have 'practical inexhaustibility'; if there is as good a piece
of knowledge out there after appropriation.

The next section deals with the view that what is taken out of the commonly held knowledge is in
some way not part of that commons, since it is a new creation. This questions whether Locke is the
right theory at all, and seems able to supply us with ownership of such 'created intellectual goods'. I
will show that such a claim hinges on a very particular view of what knowledge is held in common
to begin with.
Therefore, the following section will take up this important component of the second Lockean

1 Tuckness, Alex- 'Locke's Political Philosophy', The Stanford Encyclopedia of Philosophy (Summer 2007 Edition),
Edward N. Zalta (ed.)

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Provision; what part of the world of knowledge do we actually hold in common before
appropriation begins? Various possible answers are tested and rejected, leaving possibilities that our
'knowledge commons' is either all possible knowledge, or is continually expanding along a frontier.
In the conclusion, I will show how the elimination of these options shows that a Lockean theory of
property concerning all knowledge will either fail, or need a more complex conception of how the
'world of knowledge' is constituted. The following two chapters will explore a more limited version
of such ownership, and try to expand on them, while the more complex view of the commons will
be the topic for the chapter 'The Commons as an Ecosystem'.

Applying Locke.

Locke's Theory of Property.

Locke's theory of property can be, and has been, used to argue for the ownership of knowledge.
Here, I will show why this makes sense at face value; before demonstrating the problems which it
entails. Locke's assumptions are based on the belief in a creator, but as others have shown, they can
easily be stripped of this requirement. In order to get his argument of the ground, Locke needs two
things: A world which we own in common, that is somehow intended for our use or is at least, all
else being equal, ethically unproblematic for us to use. Secondly, he needs the natural ownership of
our bodies, that we have a natural right to use it for our own benefit and no one else's, should we
chose to do so. This can be read from Locke's Second Treatise, sec. 25-26 (Locke, 1690).^

The world held in common is taken to be the natural world and all things in it, including their future
potentials and fruits. For the purposes of this chapter, this will be the world of knowledge in the
broadest possible sense, meaning all possible ideas and experiences - whatever can be thought. Now
we need to see whether this concept can be said to be equally owned by all, and unproblematic to
use. The latter seems clear enough - no one is hurt by anyone's usage of knowledge in itself, we do
not even need the usual exceptions for the material world, such as disallowing the use of my bone
club to hit my neighbour. Whoever has access to this world of knowledge also has a prima facie
license to use it. In this paper, I will take this unproblematically to mean human beings, although
one could argue for the inclusion of extraterrestrials species, certain animals, future Artificial
Intelligences, and perhaps for the exclusion of infants and the severely retarded. Obviously, my
arguments hinge not on DNA or being bipedal, but on the access, ability and needs to use this world
of knowledge.

The other thing required of a Lockean commons is that it is 'equally owned'. By this I mean that
there are no natural partitions within the realm which dictates its use. One possible stance on this
could be that the world of knowledge is owned by all, in a particular sense of the commons which
does not allow for any subsequent partitions or appropriations. This is actually claimed by some,
with reference to natural tendencies such as 'information wants to be free' and arguments
emphasizing the inherent access and benefit to all. I will not attempt to argue positively against this
position, but rather argue for its negation and see how this attempt fares; the entire paper will, in a
sense, be a reductio showing to what degree this position is right. It would, in any case, be
impossible to decide which argument should be given primacy - if I chose to consider the
'information is inherently everyone's' position first, one could protest that Locke's arguments are
more 'basic' and should be ruled out before any discussion of any other position makes sense.
Instead of discussing whether information is inherently free, I have chosen to discuss whether

2 Locke, John. Second Treatise of Government. Hackett Pub Co Inc; 1st ed edition (1690).

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information can be owned at all and under what circumstances. I will therefore assume that
knowledge is not already unownable or owned by all in a way which excludes appropriation.
Another possible problem is that we could claim that certain knowledge is inherently owned by
certain people. A soft version of this could be that the contents of ones brain, childhood memories
and maybe personal diary entries and pictures are ones own. This is the view I will return to in the
chapters on personhood - in the current part of the paper, one could still use the arguments
presented, provided they exclude such personal knowledge. Roughly, the arguments presented try to
expand what can be appropriated from commonly held knowledge, while the personhood discussion
go towards making clear what is inherently owned and never a part of that commons.
We could also imagine a possible harder position, which claims that certain knowledge simply
belongs to certain people or that it should not be owned by anyone, based on other arguments than
certain personhood interests. Few people actually holds a view that they are somehow a priori
entitled to the exclusive use of e.g. the knowledge inherent in a given book. One possibility would
be religious beliefs which would exclude certain knowledge from what should be known, made use
of or exclusively owned^ - these will be discounted from the paper as they lack any argumentative
basis.

The other thing we need in order to use Locke's argument is the idea that we own our bodies.
Establishing such a 'mental body' which can make use of the field of knowledge is at least as
unproblematic as with our physical bodies; I am free to think what I want, about what I want, when
I want. Various existentialist and phenomenological theories even argue that we are this inherent
freedom, and it is certainly convincing that such freedom is a necessary condition in order for us to
be human at all. Without the freedom to think what I want and access the knowledge I have, there
seems to be very little left of me.

One possible caveat is that there may be certain positive obligations which trump this; it could be
argued that we have obligations towards those worse off than ourselves which trump our rights to
property, and maybe even our freedom to decide e.g. to let our hands lay idle. Such a critique would
hit equally hard regarding ownership of knowledge. However, it is hard to imagine how it would
lead to any systematic changes in property relations; it would be a different ethical claim, even if it
trumps and impacts on property relations. I will therefore assume that we can talk about our minds
as something we own.

Locke's theory of property is rather simple and elegant. I own my body, meaning I am free to do
with it as I want. This also means I am entitled to the pleasure I can derive from it."^ If I were not
entitled to what my body could give me, my ownership of it would be entirely empty of meaning
and my life as I know it would be impossible, not to mention in the hands of whoever does own
those fruits. This also extends to what I 'bring out of nature' (ibid.), such as picking an apple, and
the argumentation is the same; I am not taking that resource from anyone and if I were not allowed
to take it for myself, no one could ever enrich their lives with anything. Also, I am again expending
some effort towards the goal, meaning that I am, compared to everyone else, in an special
relationship with regards to the resulting object; it was no ones a minute ago, now I did something
to earn it while everybody else in the world did not, therefore it should be mine.
The final step is to expand this to not only the direct fruits of my labour (e.g. the apple), but also to
more complex actions, such as planting an apple-tree; again I am allowed to appropriate the apple-
seed, the ground and the fertilizer and claim ownership over the result, because I did not take

This might be, in the Roman Cathohc Church, knowledge of demons, mechanical contraceptives and the human
genome, respectively.

Anticipating Locke's further argumentation, we could say this is because this pleasure is not taken from anyone else,
but brought mto being by my doing.

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anything from anybody and life would be very difficult indeed if I were not allowed to do this.
Again, I have mixed in my own labour with the natural resources (found the seed, hauled the
fertilizer, etc.) and have an even stronger relationship with the object - it would not exist as it is
without me. Locke also discounted the possibility that I confer with and seek licence from those
affected; this would potentially be everybody in the world, and again we would reach a situation
where mankind's ability to benefit from his surroundings would be so impaired that even those
asked would be worse off

As I read Locke, the various sort of appropriations (of experiences, 'fruits' and semi-permanent
property) hinge on three conditions, which also function as positive arguments for why the
appropriation is just. The first is the mixing of labour; that I performed some sort of work which
makes my relationship with the object different from anyone else's, added a value to which no one
else is entitled. The second is that appropriation is necessary; otherwise we could never even pick
an apple and all of humanity would starve. Lastly, we must hurt no one who had an equal claim to
the resource; that as long as we leave 'enough and as good', one cannot in all fairness object.
Unfortunately, Locke is not clear on whether these are all necessary conditions for a fair
appropriation, if one is sufficient in itself, etc. This has led to quite a bit of discussion, which I will
not detail here, but come back to as it becomes important to the discussions at hand.

An Example of Knowledge Appropriation.

In this section, I will apply Locke's theory to the question of knowledge and property and 'follow
the problems' as they arise. I take Hughes to be a proponent of this view, but the criticisms that I
will bring forward is not aimed to disprove his position in general. Certain claims by Hughes^ are
specifically criticised, however; but the point of the section is to bring out the problems inherent in
using Locke's argumentation in the world of knowledge, and see if they can be addressed
satisfactorily.

As an example, let us look at the invention of the firemaking technique of using a bow to drill with
a stick, igniting twigs. This seems to fulfil all of Locke's conditions for just appropriation: The
inventor performed some labour; he intentionally used a process of trial and error, applied his
intellect and added value to what is currently known about fire, bows and twigs. Secondly, he will
obviously have to be allowed to use this technique, in order for anyone to profit from it; and so he
can be said to 'own' it. Thirdly, no one is hurt by the appropriation - a point which I will come back
to as Hughes uses it specifically.

But first, I will take up a critique that William Fisher levels against such attempts to use Locke's
'mixing of labour' regarding knowledge. He mentions various possible conceptions of what labour
amounts to, when we are talking about the creation of new knowledge, and problematises this:'No
grounds on which we might select one or another are readily apparent.' and 'In short, a lawmaker's
inability to choose among the four will often be disabling.'^ While he is right that a more accurate
description would serve us well, especially if we are to make a system of law for these kinds of
appropriations, his conclusion that we cannot use Locke as a theory of justification for them is,
quite simply, arguing from ignorance. Even though we do not all agree on what intellectual labour
means, we can all agree that it exists. I maintain that we do recognize it, both as a society and as
individuals - an author does not go to bed thinking he has done nothing after finishing a chapter, and
we do find it natural to pay salaries to inventors, corporate strategists and employees at advertising
agencies. Just because there is no perfect theory describing what intellectual labour is, this does not

5 Justin Hughes. 'The Philosophy of Intellectual Property', Georgetown Law Journal (1988).

6 Fisher, William. 'Theories of Intellectual Property.' In New essays in the Legal and Political Theory of Property
Cambridge UP (2001).

Kristian Lund - Ownership of Knowledge Page 10/67

mean we have to discard all theories which make use of the term - although it does suggest that
there is more work to be done. In the following chapters on personhood rights, I will return to
discussions of what (else) can be said to put me in a special kind of 'earned' relationship with a
given piece of knowledge or expression which may enable me to claim some sort of ownership.

A more problematic critique is actually inherent in Hughes' claim that knowledge is an even easier
field to apply Locke's theory in, because 'With ideas, the inexhaustibility condition is easily
satisfied; each idea can be used by an unlimited number of individuals' (Hughes, 1988). This is
correct, but only under the condition that we leave the common exactly as it is, only copying and
not removing anything by e.g. erecting legal barriers.' As long as we take ownership to mean a
'right to use', then Hughes is correct: I performed some amount of labour on existing ideas and
made a new one, which is therefore somehow mixed with myself and which I have a right to use. I
will have to be allowed this use, otherwise humanity would never be allowed to improve their lot in
any meaningful way. And I obviously hurt no one with any stake in the common of ideas. But this
kind of ownership gets Hughes nowhere - others would have an equal claim and I have been given
no exclusivity rights over the idea. This would amount to saying that we cannot own knowledge at
all, but can use it freely.

Hughes does have one out, though: He could claim that the first condition is a necessary one, even
when we are only trying to establish a licence to use. Meaning that those who have not done any
intellectual work on a given technique are not allowed to use it (we could then further argue that I
am allowed to 'licence out' my own licence to use). But this is placing too much stock on the labour-
condition. If I walk in the woods and pick a berry, I am allowed to eat it - the laughably trivial
amount of work required does not mean it gives me no rights to the berry. The same must go for
intellectual work; even though it is a trivial matter for me to recognize your bow and stick as a new
technique and then apply it, this does not mean I should not be allowed to use it simply because my
discovery was easier than yours. Such a restriction on the labour-condition, that it be necessary and
require a certain amount of work, will collapse Locke's theory as such; not only would picking
berries or turning on a factory machine to make a shoe confer no ownership even conceptualized as
a licence to use, neither would inventing the obvious: all of humanity would be barred from making
use of the majority of its innovations. I will therefore leave the idea of property as a 'licence to use'
as meaning no property at all. It would essentially leave all knowledge in the commons, and though
this may very well be an acceptable conclusion at least for certain categories of knowledge, it is not
a truly a kind of ownership. In the following, I will examine the ways which we could establish
some more substantive (with an exclusive component) ownership of knowledge.

If we do take property as meaning more than a licence to use, then Hughes' claim that the common
of knowledge is inexhaustible is simply wrong. If I earn any kind of exclusivity right from
inventing, e.g. a fire-making technique, then I do not leave the common in the same state as it was.
Although the rest of the common is left intact (people are still allowed to use bows, sticks and twigs
in other ways), then a unique part of it has been cordoned off. The bow is not 'as good' a technique
as it was before, because now I cannot use it for that specific purpose. Although I was not using it
for making fire yesterday, I am now barred from doing so tomorrow, too. A potential which was
inherent in the common is taken out of it, just as if someone dumped chemicals on a common
village field and thus pre-empted the use of it for grazing (whether it was used for that purpose
yesterday or not). So either Hughes conception of knowledge is simply a licence to use for all who
want, or it is more than that and not justifiable using the version of Locke's arguments he presents.
I will return to a claim which may be seen as implicit in Hughes argumentation, that the common
may be overall improved through such appropriations and some kind of exclusivity rights thereby

7 That IS, knowledge is what economists call a 'non-rivalrous' resource, as compared to scarce ones.

Kristian Lund - Ownership of Knowledge Page 1 1/67

justified, in the fifth chapter. For now, I will move onto the discussion of how big of a problem the
'enough and as good' provision is for Hughes and others who wish to use Locke's theory to establish
ownership of knowledge.

'Enough and as Good'.

A Necessary Precondition.

I believe that, at least within the world of knowledge, the condition that we leave enough and as
good is necessary for any appropriation to be just. The main opponent of this view is Jeremy
Waldron who, in Tuckness' words, claims: '...Locke did not recognize a sufficiency condition at all.
He notes that, strictly speaking, Locke makes sufficiency a sufficient rather than necessary
condition when he says that labour generates a title to property "at least where there is enough, and
as good left in common for others" ' (Tuckness, 2007). His argument goes like this: If we demanded
that there always be enough and as good for any case of just appropriation, then certain resources
will go unused. One can easily imagine divers running out of oxygen and shipwrecked mariners
starving; all unable to use the last of their precious resource because there would not be enough for
others. More relevant examples could also be found; should we be allowed to use our oil and coal
resources, knowing that this deprives other countries and future generations of that fuel?
Waldron's argument is a convincing ad absurdum against taking the 'enough and as good' condition
as absolutely necessary, although he does not in any way dismiss it entirely. This leaves the
condition as a sufficient one; that appropriations are unproblematic when they hurt no one is clear.
But that does not mean that it becomes irrelevant who and how many they hurt, just because we
must in some instances allow such, possibly quite problematic, appropriations.
In any case, Waldron's argument fares differently when we try to apply it to the world of
knowledge. If we discount the condition of not hurting anyone as a non-necessary one, then we are
left with the two others to grant us the right of appropriation. Waldron argues for a strong reading of
the necessity condition against the 'enough and as good' provision, that if we do not allow certain
appropriations, then we will be much worse off** Both in a given situation or as a species, we will
be required to waste certain resources if we cannot use them whenever someone is hurt by that
usage. But within the world of knowledge, such an argument has no power to establish en exclusive
right; if anything, it is an argument against them. Having invented a way to make fire, I need no
right to exclusivity in order to make use of it. Knowledge is never scarce and is in fact more easily
copied from medium to medium than it is moved; it would actually cost me or society resources to
stop others from finding out how I make fire, whereas allowing them to copy the technique costs
nothing. A Lockean justification for property of knowledge must therefore either establish an
exclusivity right as necessary through a sort of labour or similar (which I will get back to), or it
must be constrained by a demand that there be 'enough and as good' for others.

In this section, I will show how we cannot have any simple form of inexhaustibility, whether de
facto or practical, when we distribute exclusivity rights. This means we must look either to a more
robust (and, as stated, self-sufficient) version of the labour-condition, or towards a more complex
and organic conception of the common of knowledge. As mentioned in my critique of Hughes, the
commons of knowledge, understood as simply all knowledge out there, is not inexhaustible. This
does not hinge on a claim that there is a limited amount of knowledge (which would be wrong), but

8 Note that the term 'necessity condition' refers throughout to the Lockean condition that we must need the

appropriation, for it to be just. This is not to be confused with whether a given condition is itself a necessary one -
the necessity condition is most convincingly argued to be itself a sufficient, but not necessary condition of just
appropriation.

Kristian Lund - Ownership of Knowledge Page 12/67

rather that one piece of knowledge is not exchangeable with another. If you take water from the
lake, there is still enough for me; but if you own the idea of producing fire with a bow and stick
exclusively, then I am limited in my use of material resources (fireplaces, wood, bows and sticks)
and knowledge (how to use a bow). Although there is unlimited knowledge out there, there might
very well not be a corresponding technique for making fire which takes the same amount of effort,
time and uses comparable resource - and there will certainly not be one for everyone!
In a nutshell, the problem is how the world of knowledge 'works'. Unlike material objects, a piece
of knowledge is numerically identical with its copies; the technique of fire making is the same, no
matter whose mind, harddisk or stone tablet it is inscribed on. Excluding me from its use is not like
excluding me from a particular berry or fireplace, it is excluding me from all similar berry-pickings
and fire makings. However trivially you have reduced my options, I will always be harmed by this;
there is now something which I am not allowed to do, which I was before.

Creating legal, mechanical or technological barriers around given pieces of knowledge' may make
them artificially scarce or hard to copy, but they will never be 'like' material objects. A piece of
knowledge is infinite, in the sense that it encompasses all previous, present, future and potential
instantiations of that knowledge. Granting someone an exclusive right is, unless tempered by further
legal niceties, restricting everyone else and thus, all else being equal, leaving them worse off. This
is vastly different from granting someone the right to use a shoe he has made (an action, the sum
total of which, interferes with no one) or even the use of a field (at least as long as there are other
fields or opportunities for earning ones living).

The Scarcity of Techniques.

Against this, one could argue that Locke was aiming at, not completely victimless appropriations,
but that no one is substantially harmed. Picking a berry does exclude everyone else from picking
that particular berry and would, in an extremely pedantic reading, seem to harm you in that it takes
away your opportunity to pick it, and forces you to extend your hand a few inches further should
you want one. Sreenivasan (Sreenivasan, 1995)'° has argued against Waldron's position on the
matter, that we must take the 'as good' condition on its word - what matters is that I do not harm
your prospects for securing your livelihood, well-being, etc. People in my village can still pick
blueberries, people in Sahara are still unable to do so - no one's situation is changed for the worse.
One could try to apply the same view to appropriations of knowledge. If there is another piece of
knowledge which is as accessible and will serve you just as well, there is no harm in allowing me
the exclusive use of this one. But this is rarely, if ever, the case with knowledge. If we look at
knowledge of certain useful techniques, this becomes clear The above example with fire making is
a case where there are only a very limited number of ways to reach a certain goal (a fire); whatever
variations one can think of are merely instantiations (building one's bow differently would not
constitute a new technique, for instance). Granting exclusive use over them would harm all but the
lucky two or three families with unique techniques. Most, if not all, techniques in mathematics and
other formal languages are the singular way to reach a particular goal - Pythagoras' Theorem is the
only way to establish the length of the third side of a triangle given the other two. All other
techniques which can do this are essentially just rewrites of the original idea and no more a new
thought than it is to use a different stick to ignite a fire in exactly the same way as one's neighbour"

9 Which has been tried through patents, hard coding on microchips or elaborate 'Digital Rights Management' software
- with various degree of failure.

10 Sreenivasan, Gopal. 'The Limits of Lockean Rights.' In Property, Oxford: Oxford University Press (1995).

1 1 Claiming otherwise equals saying that trivially different expressions or non-functional changes of a given method or
piece of knowledge are not the same piece of knowledge. If this were the case, there could be no real ownership of
knowledge; each instantiation would be a different 'piece of property' with a new owner

Kristian Lund - Ownership of Knowledge Page 13/67

The common is not left as good as it was before if such a technique is appropriated; and even in the
cases where this is not apparent, we have the problem that we can never know what knowledge
becomes important tomorrow. If all the village's fires go out and the nearby volcano becomes
dormant, then the bow and stick technique suddenly becomes the only thing standing between life
and death. And if we had awarded Pythagoras and his descendants exclusive use of his theorem, all
construction work would be directly controlled by a very small group indeed. Such appropriation is
not acceptable, nor should it be in the time before a given invention becomes of critical importance;
potential harm of an unknown magnitude is not trivial. I further posit that, by its very nature, we
cannot know what knowledge becomes of great importance in the future, or will lead to further
critical inventions; possessing the details necessary for such certainty would be tantamount to
already having the future knowledge.

Still, the argument may hold some weight if we exclude techniques. But parallel examples can be
set up, at least when we are talking useful knowledge. A given instantiation of a useful technique,
such as a computer program to find prime numbers, is potentially harmful to grant one person. If the
instantiation is the most effective one, then everyone else is forced to expend more time and energy,
or get less results than they had to; clearly, harm has been done to others. The same can go for data:
if you own the phone book exclusively, I will not be allowed to copy or make use of it; no one could
even call anyone as they are not allowed to 'use' the knowledge inherent in the phone number We
also have sad real-world examples of actually conferred ownership over parts of our common
genetic make-up, clearly a case where other research projects are hindered in finding information
which is valuable to all of us.

The Exhaustibility of Data.

So far, I have used examples that have potentially grave consequences, but there is a lot of
knowledge which one could classify as luxury goods and where the harm done by appropriations
could be said to be trivial. This includes books, movies, reproducible paintings, photos, etc., all of
which we could certainly live without; it seems that granting a photographer exclusive rights to his
photo does not harm me in any meaningful way - there are other photos to look at, presumably as
good, just as there are more berries in the thicket. Our appropriations are not just according to even
his more restrained reading of Locke; if they leave a portion of humanity completely without certain
forms of goods, luxurious or not, they are problematic. What matters is whether I can get another
berry, field or job which allows me to live as well as if the appropriation had not happened; the
question is not 'can I live without this?' but 'can I live as well without this?' Under Sreenivasan's
reading, appropriating luxury goods does not, in itself, become just; only when there are enough
and as good of some interchangeable good. Such a supply becomes, paradoxically, harder to
establish the more 'worthy' the owner - the greater and more unique the expression of genius, the
less interchangeable that good becomes and the more we hurt the commons by removing it.

A further possibility which could bolster the idea, is that some knowledge would not be known to
humanity at all, were it not for a particular agent. One could even try to level this claim within the
realm of (potentially) important techniques; if no one but Pythagoras could have invented the
theorem he has become famous for, then no one is harmed by allowing him exclusive use over it -
he has taken nothing from the commons and we are all left with 'enough and as good' as if he had
not made his invention. This only holds under the assumption that we are not allowed to seize the
intellectual fruits of one man's labour for the betterment of all (which is given as long as we follow
a natural rights justification of ownership over a consequentialist one). However, claiming that such
knowledge would never have been discovered by anyone else ever is simply too unacceptable a

Kristian Lund - Ownership of Knowledge Page 14/67

premise; especially considering we have the rest of humanity's lifetime and a seemingly ever-
expanding knowledge of the world with which to come upon the invention again. '^ Such a claim
seems infinitely more intuitive when made about creative endeavours. If someone climbs to the top
of Mount Everest and take a photo of the sunset, it is going to be pretty unique; this particular photo
would not have existed without that person. Comparing a world were I am allowed the exclusive
use of the picture, and one where the picture was never taken, it is clear that no one is worse off in
the former. This presumes that another person creating that same image at a later point would be
allowed some sort of joint ownership with the original 'author'. Under current and future technology
and as long as we are speaking of works above anything but the most trivial size, however, this
becomes a mere footnote; the chance that two people take the exact same photograph is
astronomically small and the same would go for other endeavours.'^

All this, however, only takes into account the ownership of the exact same knowledge - our Everest
photographer might feel that he should be entitled to work based on his original, such as posters
using it, digitally altered versions and collages. Several paths become possible here: we can grant
him ownership of the data which allows him to control its further usage, some kind of control over
the 'idea' and 'expression' of the original, or a broad right over similar pictures. The later would
quickly become a problem; if I am allowed to own the idea of 'sunset over the Himalayas' then the
commons is decidedly reduced and others will not be left 'as good'. The second possibility, granting
a right to the 'idea' inherent in the picture and its 'descendants' runs into similar problems, but on a
smaller scale. Under this idea, you would not be allowed to use your inspiration from my picture
freely, e.g. making a painting based on it or referencing its likeness in a comic, movie or computer
game. Disallowing such references would eliminate parody and a lot of relevant critique''*; and
however narrowly we define what amounts to a reference, there are going to be cases where I am
suddenly unable to paint, write or direct certain scenes because they would reference something that
went before. We certainly want more than one author to be able to write a book about the secret
truth behind the myth of Jesus; what if the first one is no good?

The last possibility is that we honour 'descendants', not of the abstract idea, but of the data. This
would mean that I am allowed to repaint or photograph your motive, but not allowed to use your
original as a basis for e.g. a poster, background or similar. No one would be hurt by such an
approach, as the only thing prohibited is the use of the data, which would not exist were it not for
the original creator. However, such a justification cannot trump other problems; if the data
constitutes the best method for a certain goal, or one method out of a practically finite amount, then
all others would be hurt by its appropriation. If I am the first to print out the machine code
instructions for using Pythagoras' theorem on a modern computer, granting me exclusive rights to
the use of that data would amount to granting me the exclusive use to the method on all computers
in the foreseeable future. The claim that such information would not exist were it not for a particular
person is suspect in itself, but the above arguments against such 'ownership of a method' would rule
such justification out regardless.

Another type of information ownership, which could be allowed in this way, would be very small
and otherwise useless pieces of data, for use as designators (such as trademarks). Allowing me to
designate myself, a group, product or company with a given word seems to hurt no one There are
plenty of words left which would serve others as well, given that we demand enough specificity of
the designator - others are allowed to make copiers and search engines with brand names that are as

12 I return to this discussion in more depth in the chapter 'The Commons as an Ecosystem', under the section 'The
Expansion of the Commons'.

1 3 Infinite monkeys on ditto typewriters aside, nobody is going to rewrite Hamlet any time soon.

14 Such as subverting a company slogan or logo by putting it in a new context.

Kristian Lund - Ownership of Knowledge Page 15/67

good, even though Xerox and Google is taken. Within the relatively simple Lockean approach taken
here and above, this is quite unproblematic, as long as we assume that all names are equally good.
Additional support for a right to otherwise non-functional names and trademarks are further
explored in chapter four, 'Personhood as a Necessity'.

The Commons.

What We Are Taking Out.

William Fisher points out another problem with Hughes and the attempt to use Lockean
justification, and that is the constitution of the original commons from which we appropriate. So far,
I have taken it to be a rather unproblematic 'world of ideas', a static view of all the knowledge that is
'out there' - roughly corresponding to Fisher options a, g and to some degree f (Fisher, 2001). Fisher
brings up the problems inherent in certain possible conceptions of the commons, and I will do the
same in this section, trying to take an even broader view of what the common of ideas is. Unlike
Fisher, I will not focus on actual legal practise, nor dismiss the problem as unsolvable with a 'Who
knows' regarding which conception is right, but attempt to see if there are any which make sense
internally and allow us to justify some sort of exclusive appropriation.

Fisher makes the claim that he has found problems with using Locke for justifying the appropriation
of ideas. He only gives one example of his critique, but presumably he believes it to extend to his
other possibilities for conceptualising the commons. His critique is threefold, the last two proving
relatively unproblematic. The first of these is a claim that Locke gives an eternal, inheritable, etc.
right of property, whereas we are looking for another kind. What answer we are looking for is not a
relevant objection to a theory's conclusion, and we may even find reasons that disallow selling or
inheriting such rights if we look deeper, even within a Lockean framework. Secondly, he
problematises the (lack of) inherent exclusivity of knowledge. In the sections above, this was shown
to pose severe limits on the conclusions we come to, but it points toward a change in conclusion,
not an exclusion of the theory.

Fisher's remaining contention with Locke's theory, as applied to knowledge, raises questions about
what the commons is: Locke allows ownership of an improved field, by the mixing of labour, the
necessity for ownership if we are to be allowed to earn the fruits of our labour and providing there
is enough land for others. Within the world of knowledge, Fisher claims, the field is not improved
but, rather, a new field is created while the original field is left as it was and not appropriated. This
is all elucidated under an example where he assumes that the commons is 'the set of ideas currently
apprehended by at least one person but not owned by anyone' (ibid.), but the critique could be
equally applied to most conceptions of the commons. It does not, however, strike home; the case
simply becomes analogous to picking a berry, which is allowed under the same restrictions in Locke
as appropriating a field (Locke, 1690, Sec. 28). Even if we remember that the new idea may itself
form, or be part of, a field from which we can further appropriate, this only constitutes a further
qualification to remember when applying Locke. '^ But, while the critique does not allow us to
dismiss using Locke, it does show another issue which we must consider; what part of the world of
ideas constitute a commons? What kinds of knowledge are in the commons and belongs to
everybody, and what kind of knowledge is outside it and unproblematically ownable?

What Was There.

The simplest solution is the one already explored in 'An Example of Knowledge Appropriation'

15 1 return to such considerations in the section 'A Necessary Infrastructure' in the fifth chapter

Kristian Lund - Ownership of Knowledge Page 16/67

above, where we assume that the commons is simply the entire world of possible knowledge,
including all potential future innovations. In such a view, one does appropriate from the commons;
even if what you were working on is not the exact same field you then appropriate, but rather a
newly discovered one. This was shown not to work unless the labour condition was taken as
sufficient, since both the necessity condition and the demand that we leave 'enough and as good'
were not met - something is taken from the commons.

Another possible view is alluded to in Fisher's example; that the new idea is a sort of crop and not a
part of the commons at any point. If we take this view seriously, the effect is not, as Fisher believes,
that Locke's theory cannot be used; but rather that we are now talking about a case analogous to
picking berries. But this mean we have a rather strange division of the world of ideas; part of it is a
commons, which we can all use to get ideas from and a part is simply 'crops' that are owned
exclusively or not yet 'picked'.

A third possibility has also been examined; that certain knowledge is specific to a particular agent in
a way which excludes it from the commons. If certain personal expressions and creative capabilities
are only accessible to me, I argued, then no one is hurt by granting someone rights to their exclusive
use. This essentially amounts to claiming that these kinds of knowledge are never in the commons
in the first place. This leads us to the first conclusion regarding what is in the commons; it must be
something which is at least potentially accessible to more than one person. Information which no
one but a single person can (ever!) access would be part of that persons 'inner life' or potential - it is
already private and if one was not prima facie allowed to keep such personal information private,
one would hardly own oneself And as mentioned, no one else is hurt by the one's appropriation of
such knowledge, however exclusive the terms. This is explored in the next chapter.

Another simple solution, which would allow all appropriations, would be to say that there is nothing
in the commons; that knowledge is only knowledge in so far as it is known by someone, and that we
therefore cannot speak of any field of knowledge outside of what is already known. Under such a
view, no one can ever be hurt by appropriation, because whatever is taken out of the commons was
only there by virtue of the recent owner's work and would not have 'existed' had he not performed
the labour in question. But even if we give the claim that knowledge does not exists in itself outside
our already known understanding, such a view would still have to argue that potential knowledge
cannot be part of the commons. It ignores all potential knowledge as meaningless or worthless -
which is inconsistent with both Locke and the nature of knowledge.

Locke specifically disallows appropriations which lead to waste, such as owning a bigger field than
you can till. It is clear that the waste does not take place in the act of fencing in the field, but in not
working it; the appropriation is wrong because it leads to future, potential waste - someone else
could have used that part of the field far better. The good of the grown field is the work which is
potentially put into it and the resulting, still potential, produce - not the field in itself '...if we will
rightly estimate things as they come to our use, and cast up the several expenses about them, what
in them is purely owing to nature, and what to labour, we shall find, that in most of them ninety-
nine hundredths are wholly to be put on the account of labour' (Locke, 1690, Sec. 40)
Also, potential knowledge clearly does have value and excluding someone from it does hurt that
person. Not giving someone a pill to save his life causes hurt, so does barring him from information
which would allow him to research and potentially produce the pill himself Even though we may
not know the exact formula he will come up with, withholding Gray's Anatomy and chemistry
books still does him harm. Big investments are routinely committed to figuring out potential
knowledge'^; it seems odd to exclude something we so obviously value from the commons.
And as mentioned in the introduction to this chapter, the world of knowledge stands in the same
relation to us as the natural world; we can all use it to help ourselves, and it has no 'natural' owner

16 Such as the state keeping me in food and clothes while I write this paper.

Kristian Lund - Ownership of Knowledge Page 17/67

already. Discounting artificial societal and arbitrary environmental barriers, we each enjoy equal
access to it - how can it not be a 'common trust'?. Also, the condition and quality of human
knowledge and the inroads it has made into all potential knowledge deeply affects us all, while all
improvements are inherently communicable and, barring legal roadblocks, to the benefit of all. All
these characteristics suggest that the world of knowledge is a commons, while there are no reasons
to think that the appropriation of ideas should escape the need for justification.

One could also try to argue that some specific categories of knowledge are never in the commons,
and hence immediately appropriable. The most convincing of such attempts would be to claim that
unimportant, 'luxury' information goods are not part of the commons, but only a certain baseline of
more or less crucial techniques and data are truly everyone's. But as was shown above in 'The
Scarcity of Techniques', we can never be sure what knowledge will be important for how many
people, and what will remain a trivial luxury. It is just not possible to make a 'canon' of knowledge
which is all we need to secure humankind a 'good life'; what we need evolves with us and our
society.

A more dynamic approach, where we attempted to define broad categories of information which we
could do without, would still have to be nigh-prescient - how would we be able to judge what kind
of knowledge will be important for a good life in the future? Literacy was not important a few
hundred years back, and being able to use a computer and competently search the internet was not
even intelligible concepts half a century ago. Would a philosopher or lawmaker in 1950 have been
able to convincingly argue that one cannot own basic interface ideas such as a cursor on a computer
screen, and that a programming language or document format should be held in common trust?
Unless we claim that the future is a lot more predictable than it has been so far, we would need
constant change and oversight into which kinds of knowledge we should allow people to
appropriate. Even basic categories such as 'knowledge needed to secure life and health' would be
notoriously hard to define in practice and require an immense bureaucratic overhead - how many
people have to suffer from a disease before a cure must be 'expropriated' from its owners? Is global
warning a problem caused by humans and will windmill-designs therefore have to be free for all?
Still, a case could be made for excluding specific expressions; claiming that though the commons
include ideas, inspiration and so on, the completed 'work is a new thing. It would also be a rare
thing that anyone's life was seriously damaged by not being allowed access to a specific expression,
as Sreenivasan argues is the significant test. One could further argue that its potential existence was
contingent upon the creator, and since it was in this way only accessible to one person, it was not in
the commons. Hamlet, for instance, would not be accessible if Shakespeare had not written it; it
contains 200.778 characters in a specific order We could say that the specific data, to Hamlet or
Everest photos, could be owned, while the expression, style, etc. cannot. Such a view runs into an
important problem; when a work is released it becomes part of the culture and de facto accessible.'^
The attempt to insist on such an 'potentiality view' after the release is explored in the following
chapter, in 'Abridging Rights by Contract'.

Conclusion.

The Failures of a Static View.

In this chapter, I have primarily used positions and arguments from Fisher and Hughes to look at
Locke's justification for property as it might apply to a relatively simple conception of the commons
- and shown how this focus becomes a severe limitation. Real ownership must have some exclusive
component to mean anything, and this 'triggers' the provision that we must leave 'enough and as

17 The implication of a works entry in the culture are explored in 'The Commons as an Ecosystem'.

Kristian Lund - Ownership of Knowledge Page 18/67

good' for others, or find some way in which another condition for appropriation can be sufficient in
itself The former demands that whatever is taken was never really accessibly in the commons or
useful for anyone else. As any information might potentially be useful to some degree at some point
in the future, this demand can only be met with any certainty by information which is unreachable
by anyone except the appropriator himself Attempts to show that the commons never contained any
information which it would hurt anyone to potentially go without was shown to fail. But one
conclusion did emerge from the attempts: that the commons must consist of knowledge which is
reachable by more than one person; otherwise, it would be more accurately characterised as part of
that person.

The other approach, that some other condition is sufficient itself, was shown to be impossible
regarding the 'necessity' condition - we do not at all need exclusive ownership to successfully make
use of the commons of ideas, as the development of mathematics and other sciences show. The
remaining option would be to claim that some form of labour or other 'mixing oneself with the raw
material' establishes an exclusive ownership relation.

The above points about knowledge potential, relative accessibility and our changing needs for
various knowledge, leads to a more complex view of the commons as a sort of ecology. Especially
the attempts to establish some view of what is in the commons and what is not, shows us that we
must look at the world of knowledge as a continuum of interconnected areas and facts which
depend, include and lead to each other.

For now, knowledge has been shown to, prima facie, constitute a commons. It is up to those
wanting appropriation to show, maybe within some more or less specific area, that the knowledge is
either not in the commons, not accessible by others or that some kind of special relationship has
been created. The following personhood chapters will explore the latter, starting with personhood
considerations as an example of how the infrastructure and content of the commons extends into our
selves. The chapters will, respectively, attempt to establish how a relation may give rise to an actual
claim of exclusivity, and whether certain kinds of personal knowledge needs to be exclusive in
order to help constitute ourselves as individuals.

Kristian Lund - Ownership of Knowledge Page 19/67

Personhood as a Labour Condition.

Introduction to Personhood.

The Various Personhood Justifications.

This chapter and the following will detail my analysis of personhood justifications for owning
information. Personhood is taken rather broadly here, including Dewey's understanding of
intentionality as the most basic component of ourselves which we may 'mix' with the world. I hope
to show both that some ownership is and should be possible, given that we wish to be functional,
self expressing and autonomous persons, and that any justification weaker than those fulfilling such
qualities will not be enough to justify ownership. I will also show how this justification is limiting,
both in terms of which 'authors' and what kind of information it allows ownership for, and what
kind of ownership. I will follow the basically Lockean framework of the paper, using his three
conditions and arguments for justifying ownership. As such, these chapters may contain arguments
more native to Hegel's theories of property than Locke's. I have chosen to expand upon them within
the latter framework, for clarity and structural reasons; dividing them among relationships which
involve some sort of 'mixing ourselves' with something larger, and those we need to have to be fully
human (in the next chapter).

In previous chapter, I mentioned the possibility of knowledge which is never accessible to more
than one person, and hence cannot be said to belong to the commons. Appropriation of this kind of
information obviously satisfy the condition that no one be hurt, a condition which seems to be
sufficient in itself Within this chapter, I will look at another options for Lockean justification; the
claim that something of oneself, traditionally simply labour, has been mixed with the world, making
the resulting entity one's own.

So, although we cannot divide all knowledge once and for all into neat categories of what can be
owned and what cannot, we may be able to make certain rules for such a division, based on our
relationships with knowledge. While external relations change, even with regards to what will fulfil
basic human needs, our inherent needs as persons do not."*

At the same time, these chapters on personhood becomes an example of how the world of
knowledge is already part of ourselves, which again necessitates a more complex view of the world
of knowledge, examined in 'The Commons as an Ecosystem'.

Locke's Labour Condition.

Mixing Oneself With Knowledge.

In this chapter, I will look at how one can justify ownership of knowledge through Locke's
condition of 'mixing oneself with...'. This is a kind of personhood interest, because what we mix
with the natural world, that is, the natural world of knowledge, is our own personal thoughts. The
ownership is supposed to arise from the fact that we owed the original, and as stated in the
introduction, I follow Locke closely in his claim that what we do own unproblematically is our
selves, bodies andmind. The argument goes that there is no justification for anyone else taking
whatever I chose to mix with the world, be it labour, creativity or intellectual prowess; so the results
must become mine instead of no ones or everyone's There is no question that intellectual labour can

18 I am aware that this claim could be contested, but in any future we can imagine, it is convincing. And we cannot
plan for any other kind...

Kristian Lund - Ownership of Knowledge Page 20/67

improve or create something, so it is a fair initial assumption that we can demand that creators and
no one else should benefit. As showed in the previous chapter, we still face the problem that such
appropriation could be so damaging to others that we must disallow it -just as Locke places further
conditions on appropriations of the physical, we must do so when the subject is knowledge.

Intentionality as Labour.

The most basic thing one can claim to have been mixed with the world is intentionality; as Hughes
does with reference to Dewey. A 'sourcehood' claim, as he also suggests, would be equally broad;
intentionality is more convincing as it follows the premise that appropriation is a deliberate action.
A person's intention is a universal counter factual to the existence of whatever product was
deliberately created; a bowl of berries, a fireplace or a computer program would not exist were it
not for the creators intention that it be so. Using intentionality would clearly be an elegant solution,
as it accounts for all the kinds of property we are looking for It works for harvested crops and
fields, as well as artistic works and menial data processing. It is also convincing in the sense that
intentionality is one of the most basic candidates for what we are ourselves; there is nothing I feel
more in control of and tied to than my own intentions. Divorcing me from the fruits of my
intentions seems inherently wrong and even endangers our notions of personhood. More will be
said on the persuasiveness of the intentionality approach as a sufficient condition in the next chapter
on necessity. Here, I continue the analysis without further positive argumentation for the appeal of
the intentionality approach; I presume its validity for now, in order to analyse the limits of such a
broad account of a labour-condition and thereby deliver a critique that will apply to all such
conditions.

If we take intentionality to work as the 'labour' contributed to, and mixed with, the world of
knowledge, it would supply ownership to any kind of creation. When Pythagoras thought about
triangles, even though he used current knowledge and definitions in coming up with the new piece
of knowledge that 'the square of the hypotenuse is equal to the sum of the squared catheti', the
resulting theorem would still be his. His intentions were the immediate cause and if the knowledge
is used by anyone else, then my intentions have been unfairly expropriated by those individuals or
the society allowing it. Although this account seems convincing, it still runs into the same problems
regarding the provision that we leave enough for other, which were described in the previous
chapter. The question becomes, then, whether letting intentionality 'do the work of labour' allows
this condition to be sufficient in itself and bypass such criticism.

This presents a problem, however, since we are looking for ownership as an exclusive right. The
right to use and benefit from knowledge one has created is a natural fact of the world; one we need
in order to function and which it hurts no one if we grant. But my intention to create a theorem
regarding triangles is satisfied upon that works completion, and if it were sufficient in itself to allow
me control over the use of the theorem in any way, then we run into another 'present-centricism'
problem. Those in the future are worse of, as they must pay me or do without that theorem - a
limitation I have not suffered from and which those who lived before my invention did not either.
We would continually limit future generations and those around us in a way which contradicts the
very thing we are trying to establish; that they be allowed the fruit of their labour and intentions. In
order for everyone to enjoy the same rights, we must allow all parallel discovery; if I think up
Pythagoras' theorem today, I should be allowed to use it, sub licence it, etc. too. Otherwise, my
intentions are being thwarted for yours. This problem occurs no matter what we try to substitute for
'labour' in Locke's theory; if we claim that something would in itself supply the creator with a
sufficient condition for exclusive ownership, without taking provisions about society and other
peoples' needs into account, then we run into this inconsistency. We must allow new creators of the
same knowledge equal ownership; what we can hope to supply any creator with, via a sufficient

Kristian Lund - Ownership of Knowledge Page 21/67

labour condition, is more properly the right 'not to share' and maybe to 'disallow copy (and use)'.
Even when this caveat is taken into account, intentionality as sufficient in itself presents certain
problems - these are explored beyond the following section, as the mere right to withhold
knowledge, which has been established, opens another possibility which is better explored first.

Abridging Rights by Contract.

Introduction.

In this section, I want to explore an important argument that is often made in support of universal
'intellectual property', i.e. the ownership of any information not already established as someone
else's or specifically 'made free'.'' The argument is classically liberalistic and so much in keeping
with Locke's tradition; it tries to go from an already established right to disallow use and expand
this based on the right to enter contracts.

Richard Volkman argues for the right to deny unauthorised copying of information or knowledge
very lucidly in Software Ownership and Natural Rights (Volkman, 2000).^° He concedes that no one
can own an idea in itself, i.e. others who discover the idea are free to use or distribute it as they
wish, as mentioned above. And he assumes that we have a right to not be robbed of our labour,
property or information; as I agree in the above and in the introduction where cases of government
or other's expropriation were explicitly ruled out as irrelevant.

As an example, we can imagine our inventor of the 'bow and stick' method of fire making and his
village. It is clear from our premises that he is allowed to make as many fires he wants and sell
them or their products, to share the secret with whoever he wants and to hide the invention from his
peers, only utilising it in private. Volkman and others now want to expand this to disallowing others
to share and use the technique, even though they know it. The argument goes that our inventor can
simply demand from e.g. a guest in his tent that he tell no one what he is about to see and that the
village and society at large should then hold the guest accountable for this promise. In short,
Volkman introduces the premise that all contracts should be upheld by society and this is the
classically liberalist aspect; securing ownership of self, property and labour plus contracts is all that
is needed for a just, minimalist state.

The question, and only line of critique against this argument, is then whether a just society should
uphold any contract its citizens agree upon, which possible criteria exist for deciding which
contracts are upholdable and, specifically, whether a contract containing clauses on the right to copy
an idea should be legally binding.

The Existence and Characteristics of Unconscionable Contracts.

First of all, it is important to establish that not any contract should be upheld by a society. A
'contract hit' where someone is hired to kill is one obvious example, but blackmail or similar
undesired practises should not have the protection of law either We allow contracts such as taking
insurance against negligent or accidental injuries they may cause, but not wilful harm they chose to
perpetrate. Our inventor above could say to his village that he could save them the recurring,
dangerous journeys up the volcano to fetch fire, if they will simply keep him in food for the rest of
his life. Would such a proposition be a 'promise to work on certain conditions' or a 'threat to cause
harm'? Neither fit entirely; the work he is promising to do is simply not to go into his tent the next

19 The following argument is the crux of all EULAs, End User Licence Agreements, and has become the de facto way
software sellers establish a privilege to sell with the provision that one does not sell or give away further copies.

20 Volkman, Richard. Software Ownership and Natural Rights. The Research Center on. Computing & Society (2000).

Kristian Lund - Ownership of Knowledge Page 22/67

time he creates a fire - it is actually less work for him to stop keeping the secret. But he does not
cause harm, either; he merely choses not to alleviate harm.

Within a liberal school of thought, where contracts come before society, the village would have to
uphold their part of the bargain if they accept such a proposition. But what if one former 'customer'
has already openly made fire using a bow, and the inventor still proclaims that no one is allowed to
use the technique unless they become part of his 'food for fire' program? Intuitive guesses about
how such a hypothetical prehistoric inventor would be laughed at aside, the question remains
whether the village has a duty to protect his 'property'. Of course, whether it is property has not
been established; the question is if he is allowed to put any restriction he wishes on its use and force
the initial customer to hide his new fire making skills.^'

In a nutshell, should the village elders send another youth on a dangerous journey for fire or should
they decide that the contract made between the first customer and the inventor is not binding and
accept the former's offer to share his hearth? The fact that no work is stolen from the inventor
suggests he has no such hold over society. We do not uphold contracts where someone demands
payment for every mention of his name or address; our society would hardly work if any frivolous
contract were to be honoured - simple game theory dictates that everyone would establish contracts
all the time in order not to be in a worse position than the few who did so, and we would drown in
paperwork and legalities. ^^ We simply do not accept that there is any harm done or work required
and lost by anyone in cases where another person uses their name or provides a third party with
their phone number - and therefore do not honour demands for compensation of these.

The contract our inventor may wish for is, then, more akin to blackmail than a promise to work,
after all; he is robbed of no work and the technicality that he is merely 'not alleviating' instead of
'causing' offers no protection for the same reason. There is no work or other loss involved in neither
what he is threatening not to do nor what he promises to do (and certainly no difference in the
amount of work), so categorising it as blackmail or not becomes simply a question of intentions -
when he denies the others the right to make fire he is intending, as well as causing, them harm. His
decision not to save the hypothetical youth from his journey up the volcano is not because of
laziness, personal beliefs or any other potentially justifiable reasons; it is not, as Volkman would
have it, a case of saying '...you have no right to my help in the pursuit of your life.' (Volkman,
2000). This is a case of saying 'no' when one could just as easily have said 'yes', no work is involved
either way. Our inventor would be actively wishing for, and benefiting from, the danger as part of a
calculated strategy to obtain further personal gains than already acquired from his own use of the
invention (and a possible first buyer's payment). It is hard to see why society should help him
accomplish this, unless it somehow benefits everyone in some other way, as explored in 'The
Commons as an Ecosystem'.

Obtaining Use Value or Obtaining Market Value.

Another way to look at this is in economic terms. We can ascribe value to the knowledge of the fire
making technique in at least two different ways; either the objective 'use-value', how much it is
worth for the individual and society at large to have this technique, and as a 'market value', how

2 1 The following arguments may seem to allow government expropriation and maybe even cheating the inventor of his
promised reward in cases were he does not freely reveal anything about his source of fire. Additional considerations
rule this out, however, such as invasion of privacy and the right to think freely, also in one's notebooks, without
fearing the repercussions.

22 Much as American software companies today have to patent everything, m order to have a bargaining chip whenever
they are sued or blocked in their research because of a competitor's patent.

Kristian Lund - Ownership of Knowledge Page 23/67

much you can get for it. In liberal theory, the latter is supposed to tend towards the former - the
seller and buyer attempts to maximize and minimize, and the degree of difficulty in creating the
product, the level of need for it, etc. will all balance out to a more or less fair price. There are
several problems in applying this to knowledge.

First of all, as mentioned in the previous chapter under A Necessary Precondition, knowledge is
always a monopoly and we rarely have another supplier of a comparable good to drive the price
down (and even more rarely, enough suppliers). A natural element guiding the market price is
missing in all but very special cases (such as a publisher who needs any old 3-page fiction piece to
fill in a magazine before deadline). This is problematic because not everyone is a creator of
knowledge, and those who are gain an advantage over others - in a modem society, this primarily
means corporations who can afford research departments or marketing for art. The unnatural price
level also means certain market segments with lesser purchasing power may have to do without the
knowledge in question; unlike with physical products, it suddenly makes good business sense to
simply ignore entire populations of poor countries and disallow local, cheaper franchising.

In natural rights theory, this becomes a question of which Truit of his labour' the inventor is entitled
to; the market value or the use-value, for himself or other individuals, or for society at large.
Obviously, the inventor is allowed the use-value the product has for himself, and we are at least
initially inclined to grant him whatever part of the use-value he can get from others or society in
general. It is not clear why he should be allowed to get more than the use-value, and there is simply
no inherent reason why society should help secure it for him. We do not expect a farmer to get more
out of his field than the value inherent in him having tilled and sown it, and we do not subsidise his
business because of any perceived fairness that he should get more than his work is worth (when we
do so, it is presumably to regulate the market, alleviate unemployment, etc.).
Society would, though, serve inventors, and maybe itself, better if it could secure him the societal
use-value. Copyright, patents and similar institutions try to make sure that the author/inventor can
extract the use-value from each individual in society - which necessarily ends up being the market-
value. I cannot imagine how we would award the author the actual use-value from every individual,
except through careful deliberation over each person's use of all inventions throughout their
lifespan. And as already shown, the market value will rarely be fair when it comes to monopolised
knowledge.

This connects to the blackmail argument above, because the societal market value, which is
necessarily what the inventor is actually getting a slice of when he has been granted some kind of
monopoly, is only as high as it is because of the scarcity which has been created in giving the
monopoly in the first place. The fire-maker can only get the high price he demands from the village,
if the village has already agreed to ensure that the first buyer does not share his knowledge for free.
There is no 'natural market value' outside of society, and with knowledge there is not even a natural
emergent market value beyond the first sale. It is only when society protects inventors from all
subsequent sharing of their ideas that the inventor in question has any considerable (market) value
to protect.

Someone wanting to take out insurance against thieves getting caught cannot argue that //we
allowed it, then he could become immensely rich and so we are depriving him of that wealth. No
one can demand of society that it ensures the economic feasibility of their chosen occupation, by
instituting a monopoly on their part or otherwise; it is a pragmatic choice for society whether
guaranteeing the existence of a given profession is desirable enough for such measures. We have no
duty to create in our society situations wherein one individual has the power to alleviate the
potential harm of e.g. volcano-spelunking, simply in order to drive the market-value up so that
person can benefit additionally from their invention (on top of his personal gain from the invention

Kristian Lund - Ownership of Knowledge Page 24/67

itself and the subsequent rise in productivity for all of society now that it uses it).
The burden of proof is on the one who stands to benefit, in arguing that the market value he is
asking us to secure him is in fact something he is entitled to - the mere fact that one segment of
society could possibly turn a profit from a certain law is not an sufficient argument in favour of it.
The fact does remain, however, that societies such as our hypothetical village benefits from
inventions. There is a very real societal use-value which we have some intuition that we should be
thankful for and possible reward - it may even be a pragmatically good idea for a society to do so. I
return to the fairness of rewarding based on what society gains, and the problems pertaining to this,
in the section 'Securing Societal Use Value by Contract' in the fifth chapter, on the ecology of the
commons.

An Analogue Example of Extortion.

There are a couple of possible counterarguments to the problems I have laid out above. One is to
establish an analogy to a real-life example were we, purportedly correctly, actually do allow a sort
of black-mail contract to be upholdable by law, another is to simply deny that there is anything
inherently wrong with upholding contracts which have hurtful and/or unlawful consequences.

A good example of an analogue with equally (or more) dramatic consequences could be a
manufacturer of adrenaline who sells his syringes only under the condition that one not loan, rent or
use it on neighbours, family or anyone else who may need it during a heart attack.^^ In parallel with
e.g. our fire-maker above, the justification for such practise comes from his right to establish a
contract or to 'rent out' his service as he wants (neither manufacturer is necessarily kept from the
latter in the view I am laying out in this section). The adrenaline manufacturer is also 'blackmailing'
us and driving the market value of his product up artificially and quite possibly far beyond the use
value, also without putting in or avoiding any work to do so - he is also simply saying 'no' instead of
'yes'. Two important disparities appear, however, compared to knowledge. First, there is simply no
loss in the case of knowledge; neither the original 'manufacturer' of the bow-and-stick technique,
nor the potentially different user I am copying the process from, loses anything or is inconvenienced
in any way. With a syringe, the manufacturer has put effort and materials into the individual product
and he and future customers have a vested interest in him being compensated. The current owner of
the syringe may also be inconvenienced by loaning out or using his, which would necessitate him
going without for a period or having to buy two or more at a time. There is no natural, justifiable
loss to recompense for anyone when it comes to knowledge - only the market value, which society
could chose to arrange for, if they elected, prior to this consideration, to uphold certain contracts.
Secondly, all knowledge is inherently unique, as established previously; while our village inventor
can drive up the price of fire almost as high as he wants by his 'blackmail', the syringe manufacturer
faces possible competition.^"^ Withholding something which people are not otherwise able to get (to
a more or less comparable price) is completely different thing than simply demanding something
obscene like a promise you will not save the life of your neighbour, when people can get the
product elsewhere. Despite the viciousness of such a contract, no one is actually forced to endanger
their life or other's by its existence, as they are when no one can keep warm without a dangerous
journey - they can go to another manufacturer

The other possible objection to my account of potentially problematic contracts is to simply allow

23 I am actually not aware whether such a contract is legal in any or all societies today, but I am conceding the
possibility within a liberal framework as possibly justified.

24 Unless we allow him to patent his invention of adrenaline-as-cure-for-cardiac arrest, which is exactly the larger issue
under discussion.

Kristian Lund - Ownership of Knowledge Page 25/67

such seemingly unconscionable contracts. It would be exceedingly odd to see this upheld in court,
but there is nothing inherently inconsistent with punishing a contract killer for breach of contract (as
well as for maintaining it) - such convictions would be rare or non-existent, and in any case entirely
the fault of the defendant, who is free to simply not enter such contracts. ^^ If the contract specifies
e.g. that the licensee only make fire in private, there is nothing society can do if he choses to uphold
his end. It does illuminate the blackmail aspect rather clearly, though. The inventor clearly intends
harm with his contract, and still cannot hide behind a claim that he is simply 'not alleviating harm'
or 'helping me pursue my life' as he is actually expending more effort to avoid doing this than it
would be to simply allow my lot to improve!

Still, society could choose to hold all contracts sacrosanct, maybe in order to maintain some sort of
'elegance' and adherence to extreme liberal principles in the system. If all contracts are allowed,
upheld and generally above other legal considerations in any way, then consistency requires that we
also hold people responsible as if that contract did not exist. We could conceivably build a legal
system which also allow the original inventor of fire to sue a first buyer for saving the kid otherwise
fated to go up the volcano by sharing the secret, but this does not alleviate his guilt when he choses
to uphold the contract to avoid this. However, if he keeps the secret through otherwise lawful
methods and society is not ready to punish behaviour which is antisocial to the point of endangering
lives, this could consistently be thought just within a liberal framework. Under such a contract
theory, only the licensee is bound by the contract - if a third party were to acquire the knowledge in
question, he would not be bound by the contracts agreed to by others.

One problem also occurs, however, for the inventor himself While hiding his secret in the privacy
of his home may very well be thought legal in even moderately liberal societies and conceivably be
accepted as a necessary precondition for e.g. privacy in a wholly communitarian one, forming a
public contract is another matter. The contract is by definition an action taken in the social sphere,
and one which can be punished if it is formed in order to commit harm. We do not only punish the
hitman behind a contract killing, but also the contractor for his act - we even do so when the
contract is made outside of legal bindings, and a society which has decided to punish breaches of
even these contracts would have even stronger incentives to suppress contracts with harmful intent
and consequences. If our inventor enters a publicly enforceable contract that a first buyer must run a
young man through with a spear in order to be allowed to use his invention, that act is itself
punishable as it intends and (potentially) leads to harm. There is no reason to treat a condition that
the knowledge not be shared any different when it intends and causes the same harm; that our
inventor hopes to sell the panacea for volcano-expeditions and not spear-wounds is irrelevant.
Comparing this to the analogy above, the same reasoning can be used to punish the adrenaline
manufacturer; he intends harm to a potentially dying person when he makes an enforceable
contract. In this case, we may also want to punish the licensee, if he could have chosen another
brand of adrenaline - the first buyer of the fire-making technique, on the other hand, would in most
cases not be similarly culpable as he may not have had other choices except to brave the volcano
himself.

Beyond Intentionality.

The Failure of Intentionality and Simple Sourcehood.

It is clear that intentionality can supply me with a right to use knowledge I have acquired, and a
right not to share it. There may exist convincing counter-arguments which would allow a society or

25 I assume the possible legality of such contracts to show how the problems persist; plenty other reasons to disallow
them could be found.

Kristian Lund - Ownership of Knowledge Page 26/67

individuals to invade privacy and claim such knowledge for some greater good or to uphold a
higher moral principle, but as mentioned, the scope of this paper is simply to establish whether and
when there is a property right to be trumped in the first place. It was also shown that we cannot go
directly from a right not to share to a right to have my secrets protected by society. Even if people
are allowed to conspire amongst themselves in not sharing certain helpful knowledge, this does not
equate to a right to have contracts to do the same arbitrated by society.

Another possibility was briefly mentioned, however, and that is to insist that from mixing our
intentionality with existing ideas and creating a new one, we gain directly the right to decide who
uses that idea or not, limited only by the mentioned requirement that others who discover the idea
on their own gain a similar title to it. It is not intuitively clear why such a labour-condition would
itself be sufficient and certain problems do occur even if we accept it for arguments sake. Most
obviously, certain extremely undesirable consequences come about; it becomes possible with a
minimum of effort to block off entire areas of research, simply by making certain small and obvious
claims.

But, in responding to Nozick's critical question of 'Why isn't mixing what I own with what I don't
own a way of losing what I own rather than a way of gaining what I don't? If I own a can of tomato
juice and spill it in the sea so that its molecules mingle evenly throughout the sea, do I thereby come
to own the sea, or have I foolishly dissipated my tomato juice?' (Nozick, 191 4f^, the answer must
be that certain amounts of work and improvement are simply to large and important for their
originator to lose them. Locke's argumentation assumes that the original materials make up a
hundredth of the value of the final product - the unfair loss and dilution of the larger part of the
value is what is avoided when ownership is granted. The problem becomes, then, that intentionality
is a very little amount of work in itself and some ideas are extremely useful and/or profitable.
The invention of the fire-making technique could conceivably have happened by coincidence, with
the intention to use in the future as the only 'work' put in - that this should establish a right to decide
over all future usages of the technique seems preposterous. If so little work is allowed to be the
deciding factor, we would drown in licenses, rights and contracts; one person would own the idea of
picking a berry, the other that of cooking vegetable matter and so on. Moreover, the answer to
Nozick's question being that we are protecting ourselves from losing legitimately, praiseworthy and
necessary investments of work by allowing appropriations means that the labour-condition is rather
weak as applied to knowledge; you are free to benefit from your investment without receiving
exclusivity. It might be more convincing to try to establish something else and more than
intentionality as supplying ownership, something which involves a more substantial amount of
work.

Creativity as Labour.

On such candidate for the 'labour' which transforms and gives rise to ownership could be creativity.
This would have to be another candidate not exclusive towards other labours such as mental or
physical toil - both in order to allow 'normal' appropriation of physical goods and to make the
strongest possible case for ownership of knowledge. In this section, I will therefore assume that we
are talking about creativity which has some element of real work; using examples such as a
photographer learning a skill set, reading up on trends and traditions and taking the time to consider
and perfect individual pictures.

The creativity approach is promising because it has intuitive appeal, in that we feel that we have
actually invested something of ourselves and feel proud and rightly deserving of rewards that stem
from our creative endeavours. And because of its focus on individuality and uniqueness, it mirrors

26 Nozick, Robert. Anarchy, State, and Utopia. Oxford: Basil Blackwell (1974).

Kristian Lund - Ownership of Knowledge Page 27/67

the difference between the physical and mental - in the latter realm, 'objects' are numerically
different only because they are unique and not copies, just like creative work is necessarily not just
performing a known procedure. Creativity can also answer Nozick's critique and give a satisfactory
answer to why mixing it with something makes that something mine instead of just being a case of
me losing my work; there is a strong intuition that I should remain in control of my creative efforts.

Creativity is something personal, it is something I feel intensely as being mine. Despite this, I will
not take up creativity as something we must of necessity protect, but wait with this approach till the
next chapter The aspects I will focus on here, is that it is a kind of work which adds human value to
something and effectively creates something new. Neither will I take the very narrow view of
creativity which was briefly mentioned in the introductory Locke chapter under 'The Exhaustibility
of Data', where the creative products of true genius was introduced as an example of knowledge
never in the commons, the author of which could therefore be allowed any and all rights to it
without harm to anyone. A completely satisfactory account of creativity is, unfortunately, also
beyond the scope of this paper.

Following Hughes (Hughes, 1998)^' a working definition would include the following: Creativity
must include something original, at least from the perspective of the author - it cannot simply copy
and 'add together' a number of known techniques. Neither can it be the product of following a
method or set of rules to some conclusion which was already inherent in them - a deduction from
the rules of mathematics or logic is not creative. And finally, creativity is not simple randomness -
filling in a digital picture with random pixels does not constitute a work of art. A creative act can
certainly contain any of these as tools; reading to get a working knowledge of a mathematical field,
adding the ideas with some sort of inspiration and testing it using formal rules could certainly
constitute a creative act, even though the individual steps do not.

According to Nozick, creativity may very well end up being explained as an entirely mechanical
process, but still answer questions about why a mixing of labour should confer ownership instead of
being just a loss. Creativity does actually add something substantial which was not there before and
may dramatically increase the use-value of an idea or an entire field of enquiry. Deciding to use the
fire making technique after seeing smoke rising from a child's play with a bow is a trivial thing. But
if bows had not yet been invented and our inventor instead made his discovery by pondering and
correlating facts about friction, heat and transmission of directional and rotational forces then a very
real kind of work has been performed, which added immense value. ^'^

This, then, becomes a possible answer to what constitutes labour within the world of knowledge.
Improvements which are not obvious, but require actively applied 'brainpower' and which have
actual value, fits very well with Locke's thoughts. Such work is the lions share of the value the new
invention has - no amount of boards, bows and sticks gets you any closer towards a fire without the
added value of the technique, just like any square footage of dirt does not put food on the table in
itself This also further illuminates the blackmail and use- vs. market-value discussion above: Being
able to use an idea or piece of farmland to gain riches is not enough, you must be able to get some
use-value out of it. Locke did, with good reason, disallow the fencing in of any arbitrarily large plot
of land - arguments that the fence-builder would then be able to sell the land back to the now
starving nearby village would have fallen on deaf ears. One must actively use the land one takes for
producing actual use value wealth, not just use it in a ploy to redistribute wealth towards oneself

27 Hughes, Justin. The Personahty Interest of Artists and Inventors in Intellectual Property. 81 Cardozo Arts and
Entertainment Law Journal 248 (1998).

28 This also explains and parallels the common legal objections to obvious patents and twenty-letter copyrighted
works; though possibly holding great value, such works are simply below a threshold of what constitutes added
value which was not inherent m previous discoveries.

Kristian Lund - Ownership of Knowledge Page 28/67

The same would go for knowledge; erecting a 'fence' around an idea and then 'charging admission'
does not add wealth, it merely redistributes it.

This actually suggests an inherent problem in assigning ownership over knowledge. In searching for
something which will give us a right to owning knowledge, we discover that whenever such a right
might arise, it is unnecessary for justice. Whenever there exists a plausible claim that someone has
spent real work and true value has been added, that person has already gotten real gains out of his
invention. Our village fire-maker never has to worry about him or his sons being sent up to the
volcano; even if he spent days labouring over his invention, there exists a 'natural' reward for these
things and (especially within a liberal theory) it is hard to explain why he should get more. As
mentioned, society is not obliged to make sure farmers can live off their chosen profession, and nor
would it be required to ensure fire-makers, authors and software-writers any value beyond what is
inherent in their creations.

The discussion of whether one can own knowledge could end here, except for a few problems: It
has not been established that the approach to ownership and conception of the world of knowledge
are suflTiciently complex to make such broad judgements. Also, certain kinds of knowledge only has
value to other people; fictional works, poetry and social theories have no knowledge beyond a
societal use value, and the creator may not even benefit 'naturally' himself from other's enjoyment
of his work. In the following chapters, I will examine further intricacies concerning how the world
of knowledge is constituted and how it should be approached and used by us.

Conclusion.

No Strong Rights to Universal Ownership.

In the preceding chapter on personhood as labour, intentionality and creativity was explored as
candidates to what could allow justified appropriation, and failed. Intentionality alone is simply not
enough 'work' compared to the vast amount of already known facts and ideas which go into
inventing something new and the benefits provided by an exclusive right to certain knowledge. And
when a work is creative, truly new and beneficial, the immediate gains will be enough to satisfy the
inventor. Some 'middle ground' may exist between these two, maybe in the form of knowledge
which has no inherent value for one person, or large research projects society might wish to provide
incentives form. This possibility is taken up in the chapter describing the commons as an
ecosystem.

However we want something to supply exclusive ownership, we are faced with the question of how
much we are to give to the creator - a far more complex question when related to the world of
knowledge than physical objects. The argument was made that the creator may have a 'weak' kind
of demand on certain returns for his effort; it would be fair and commendable were the village to be
thankful and make some material acknowledgement, but beyond the naturally occurring benefits,
the inventor can make no demands. The opposite is true of the surrounding society; the village has a
positive 'strong' right not to have anything taken from them in order to pay the inventor or
otherwise.

The further case was made that any market value on knowledge is necessarily one driven by
scarcity; something which stems from, rather than being protected by, exclusivity rights.
Consequently, such rights cannot arise from an appeal to a potential market value. Remaining is a
societal use value, something which is hard to define and quantify, but clearly falls in the category

Kristian Lund - Ownership of Knowledge Page 29/67

of values which society as large has a strong claim not be expropriated from them, and the creator
only has a weaker claim, as clarified above. With these arguments, the idea that any contract should
be upheld by society, including one's cementing the exclusivity rights of a creator, was dismissed as
parallel to protecting blackmail or other hurtful practises.

Possible objections and points needing clarification emerged underway, which will be handled in
the following chapters - these pertain to certain consequentialist arguments, problems regarding
dependencies between pieces of knowledge and the societal value of different kinds of knowledge,
such as vital technologies and luxuries. The above sections on personhood also affirmed that we
have an inherent 'right not to share'. And although not strong enough to ensure an exclusive right to
knowledge, it was hinted that intentionality and especially creativity might be shown to necessitate
lesser rights - this will be the examined in the next chapter, along with other rights we need.

Kristian Lund - Ownership of Knowledge Page 30/67

Personhood as a Necessity.

Introduction to Necessity.

Locke's Necessity Condition.

This chapter will deal with personhood considerations as a necessity condition. The labour
condition was attempted for personhood in the previous chapter, and the condition and positive
argument that no one else is harmed will be revisited in 'The Commons as an Ecosystem'. The first
sections will be about certain 'modest' demands, attempts to establish some sort of right, short of
full exclusivity, over one's creations. Unlike the basic structure and approach in the paper, where I
presume ownership over knowledge and criticise and limit this in various ways, these sections will
argue positively towards certain rights. The conclusions made in this chapter therefore establishes
certain exceptions to the otherwise broad findings of the paper; despite Volkman's claims to the
contrary (which I will get back to), certain rights to control knowledge may emerge independently
from a universal exclusive right.

The latter sections will be similar in structure to the way the previous two attempts to establish
ownership ended; an attempt to insist that, in this case necessity, gives us complete, exclusive rights
after all. The arguments in favour of this are much stronger, as they are based in a more substantial
demand that one has control over the causes and effects one introduces into the world; the
discussion therefore spreads out over several sections and into the next chapter and its discussion of
infrastructure.

First of all, it is important to note that necessity is used differently here than it was when I dismissed
it as irrelevant in the second chapter. Unlike physical objects, we do not need to appropriate
knowledge in order to use it, so the necessity condition seems entirely irrelevant. But there may be
other reasons why a person needs to appropriate or at least exert some control over a piece of
knowledge. If a close-up photo of me were used to advertise for a political party or business which I
abhor, I would feel violated; that I remain in control of my own unblemished copy is not relevant.
While the previous sections of this chapter looked into the labour condition, the remaining will
discuss the necessity condition. Again, a more 'ecological' view is taken; all knowledge is not seen
as a static and homogeneous field, but as a dynamic relationship between people dependent on
knowledge to function socially, and knowledge as a product of this functioning. Where labour rights
were shown to be 'weak' and unable to trump others' rights to their property, free speech and so on,
certain personhood rights arise from necessity as a sufficient condition. Necessity rights are often
'stronger' and demand to be met outside of further considerations; it will also be shown that they
may not even need to be, as they often also fulfil the condition that no one is harmed or
inconvenienced in a way they have a right not to be. The contract view, in which we can demand
any price we wish for releasing knowledge, is also revisited. This stands considerably stronger
when the initial right to the knowledge is taken to be a right to control the effects caused by one's
invention.

What Personhood Rights do Not Imply.

A straightforward attempt to use the contract approach fails, however As Volkman argues for a right
to demand anything in return for the release of knowledge, he draws on intuitions which we all
(presumably also his immediate opponent, Stallman) have; namely that we have a right to be

Kristian Lund - Ownership of Knowledge Page 31/67

credited: 'Stallman and his comrades have a right to get credit for their work. But the moral
intuitions that underlie their right to get credit equally justify rights to intellectual property, if one
prefers cash to credit.' (Volkman, 2000) It is simply taken as given that the right to get credit must
necessarily come from some sort of contractual obligation we all entered into when e.g. Stallman
released the tools which would become an integral part of the GNU/Linux operating system.
This confuses an important issue: the moral intuition we have that Stallman be given credit is one
thing, and one which a satisfactory ethical theory on the subject should explain. Quite another
matter is the actual legal framework which is used to defend (among other rights) the demand that
we credit the right people. Stallman famously popularised the concept of copyleft, wherein an
inventor of e.g. software programs releases these under the condition that future versions and
improvements are similarly made available to all who wishes to use them under the same license; in
this way the software remains 'free' for all to use, understand and edit. Using copyright and licences
in no way implies that Stallmans' goal, that software be free, hinges on a right to decide arbitrarily
over the use of his code - the latter is simply a means to an end, and irrelevant to the ethical matter
at hand.

Although not an integral part of the copyleft goal, Stallman and others mostly agree that we have a
right to be credited for out work, and Volkman certainly should demand that we explain this right in
some way, if we insist that his account is in error As he only argues from the intuition, however, we
do not necessarily have to establish it as a strong right. That we give credit where it is due might
just be universally recognised as 'the kind thing do to' and not a strong ethical imperative. The latter
is not needed to maintain that software or all knowledge should be freely available to all, either; but
is one of the rights which convincingly pertain to one's accomplishments.

Necessary Rights over Knowledge.

Another Basis for Personhood Rights.

Other, more intuitive and simple, explanations exist for why someone should be given certain rights
to decide over their personal information can be given. These do not depend upon an exclusive right
to all information one is involved in, and nor does it end up requiring such control. An assortment
of different rights are necessary for us to function as individual, autonomous persons. This is not to
say that whenever these rights are denied us, we become less than human. But completely stripping
someone of these rights would make it impossible for that person to function at all, and any
restriction on them would cause some amount of harm. ^^ The discussion which follows below is the
natural continuation of an idea explored in the initial chapter on the commons, in the section 'What
Was There'. Though we cannot, as was attempted, find a specific amount and kind of knowledge
which will satisfy our demands as humans and hence tell us what knowledge needs to be free for all
and hence unownable, we can set some minimal restrictions on what can be owned and what must
be owned. The latter kind is explored immediately below, and the restrictions will be discussed in a
later section named 'Constricting Rights'.

Here, the more dynamic view of knowledge becomes important; knowledge is not only a sort of
'world of facts' outside us, but is also a part of our social world and ourselves. I am not only a
collection of cells, nor my immediate thoughts, but more importantly my entire 'biographical life' up
till now. Deleting, changing and, to a lesser degree lying about, this information is hurtful to me in
that it changes what I am without my consent - wresting away from me my full control over my life.

29 This mirrors the argumentation of Nussbaum and Sen in Nussbaum, Martha C. and Amartya Sen, eds. (1 993). 'The
QuaUty of Life' Oxford: Clarendon Press.)

Kristian Lund - Ownership of Knowledge Page 32/67

In this, I am in agreement with Volkman when he concludes in (Volkman, 2000) that '...the kind of
"life" that is morally significant is a person's biographical rather than biological life.' That the
exchange of knowledge is a part of our social life is becoming increasingly clear, as more and more
social acts are performed using so-called 'information technologies' - although, in order to see to
that this has always been a truism, one only has to consider how much of social interaction is
necessarily made up of signalling information about ourselves and others.
Various kinds of knowledge which we need to control are explored below. Other delimitations
might be possible, and further areas of equally important knowledge could conceivably be found; I
do not aim at an exhaustive account of all knowledge we must allow individuals control over, but
rather at showing what kinds of necessity arguments will 'work' in securing a person such rights.

Privacy and Truth.

The 'easiest' right to defend is the right to one's own thoughts, and that they remain private. Science
fiction abounds with examples of how terrible it would be if someone could read our minds - while
there is no speculative fiction or philosophy successfully telling us how we could even live as
anything recognisable human if we were not able to keep them private. If others could someone
eavesdrop or interfere with our thought processes, we would be wary of our own thinking and
obviously less free to even think as we truly wanted. While no technology (as of yet) allows us to
reach into the 'wetware' of the human brain and extract meaning, the point is still not entirely
academic.

Andy Clark has argued convincingly that limiting mind-reading technologies to those that access
the actual brain is, strange as it may seem, chauvinistic, in a series of papers including (Clark,
forthcoming).^" In short, the argument goes that either we know precisely what it is which causes
some piece of information to be part of our mind, or we must take a functional approach. Since we
do not know the former (and, according to some, such as Chalmers, cannot ever fully do so)
(Chalmers, 1996)^\ we must accept the other possibility and either explain how a given piece of
knowledge is not part of our cognitive processes or accept that it is. Clark defends the functional
view that the only relevant criteria is how that knowledge is used by the individual in question,
calling this the 'parity principle'. He dismisses other theories that posit e.g. the method of storage as
important or some physical 'inner core' as the only true bearer of cognition.

Reading and altering a notebook which is used by a person as an integral part of his or her memory
is intuitively wrong; and its functional equivalency to mind-reading or -tampering, and the inherent
violation of intentionality and autonomy is of course what makes it wrong. Even if one disagrees
with Clark that we count the notebook as part of the persons actual mind, there would still be a
strong case that it should be counted as equivalent morally, as the effects and harm experienced are
comparable by a parallel 'moral parity principle'.

So, the intimate right to secrecy and control over our own thoughts must extend to our notebooks
and diaries; anything which is meant for our own use only. This would,incidentally, also satisfy the
'enough and as good' requirement if this was needed; private thoughts and knowledge are outside
the commons as they are only reachable by a single person. Along with an absolute right to privacy
and (at least such modest) personal property, one's notebooks remain equally outside the commons -
no one else have been involved.

The questions arise when the knowledge is somehow also in the social sphere; how much control

30 Clark, Andy. 'Memento's Revenge: Objections and Replies to the Extended Mind.' to appear in R. Menary (ed)
Papers On The Extended Mind.

3 1 Chalmers, David. The Conscious Mind: In Search of a Fundamental Theory, New York and Oxford: Oxford
University Press (1996).

Kristian Lund - Ownership of Knowledge Page 33/67

am I entitled to? One extreme would be to answer 'none'; when you have written something down, it
is now potentially in the commons in a new way and you stand without the protection of it being a
part of you or somehow removed from considerations of society. This is less than convincing; just
because you suddenly gain the ability to read my personal thoughts does not mean you are morally
entitled to do so, in fact, a capability changes nothing regarding a right to privacy. A less insistent
claim would be that whenever a given piece of knowledge is shared with one or more person, that
knowledge is then firmly establish as being in the commons and it is essentially something else and
more than simply a part of a persons memory retrieval system. The fact that it is 'also' a part of a
persons memory system cannot be enough to give that person any special rights - I commonly use a
search engine's database to remember everything from band names to philosophy article titles; we
cannot award everyone who does so the same exclusive rights over that database (which would be
internally inconsistent and impossible). ^^

But it can be advantageous or necessary to share even the most private knowledge; people need to
tell friends, doctors, lovers, psychologists and others all kinds of information which they do not
wish spread further. It is easy enough to account for why all these persons should acquiesce to these
wishes; the trust, explicit or implicit promise and the emotional or social harm done all generate a
moral imperative that we keep each others secrets. ^^ The question becomes, then, when there is an
actual 'strong' right that others withhold certain information - one which I would, if breached
outside of society, be in my right to demand compensation for and which is therefore an injustice I
can expect society to rectify.

This leads us to the problems of allowing arbitrary contracts regarding the sharing of knowledge (as
explored in the the previous chapter); but with the added strength that the approach is here based
directly in the right to withhold information. A right to withhold, however, is not the same as a right
to reap additional benefits. Even if we assume that we have a legitimate and strong right, which
society should defend, that e.g. psychologists not repeat information gathered in confidence, this
does not mean we must then allow a person total control over all information which flows from
them alone.^"^

The hurt from, to continue the example, a psychologist who sells intimate details about a celebrity's
love life is genuine and inexcusable because of the intimate nature of the knowledge in question. It
is not because it stemmed from the celebrity, was absorbed by a psychiatrist, was valuable to the
tabloids or the result of substantial or trivial work on part of anyone; the actual properties from
which the hurt comes can be identified - and the rights to control the flow of knowledge only arises
when these characteristics pertain: The injustice comes from the fact that 'positive' hurt is afflicted
on the victim, while no just rewards are reaped by the psychologist or others.
By positive hurt I mean harm which is not just the prevention of some (potential) riches which the
'victim' has no established claim to, but something which intrinsically inconveniences a person or
worse. Public dissemination of intimate relations, paparazzi and journalist stalkers and strain on an
existing relationship are all actual harm. 'Negative' hurt would be, to further complicate the
example, the lost opportunity for our celebrity number one to blackmail the (lets assume even more
famous) other party of the intimate relationship; just like an inventor has no claim on every cent or

32 Google's lawyers would, presumably, also object.

33 Just like state expropriation of knowledge is a different problem than whether there is a property right in the first
place, the question whether there are times where such duties can or should be ignored is intentionally left out of this
paper; their initial existence is what is relevant.

34 I exclude the possibility that such betrayal is 'merely' wrong in a negative sense where the offender is simply 'not a
good friend' or otherwise only lacking some other desirable trait. Also excluded are arguments that psychologists
have somehow 'signed up' to be legally culpable for malpractice which is not in itself punishable for laymen. The
'robustness' of the moral imperative is assumed for the sake of discussion, even if it is possible to contest it - which I
do not believe would be fruitful anyway.

Kristian Lund - Ownership of Knowledge Page 34/67

advantage he can possible squeeze out of an invention, our celebrity number one has no right to
those gains; taking the possibility of reaping them away is not positive and morally relevant harm.
Another relevant distinction is that the psychologist would be earning only 'undeserved' riches,
supplied directly by the harm to the celebrity. Just as the celebrity does not have a right to what he
or she can blackmail a lover for, neither does the psychologist have a right to what the celebrity or
the press is willing to ask for the secret. As with use- versus market- value, we do not have a right to
everything we can possibly get; and we certainly do not have a right to unearned gains stemming
from a zero-sum game. The psychologist is not creating new value by selling the secret, but merely
transferring it; just like the inventor of the bow and stick technique would not be adding more value
to his invention by being allowed to erect legal barriers around it. Also important is the fact that
neither inventor nor psychologist is in any way positively harmed or inconvenienced by these
restrictions; not prosecuting or not reporting on someone's love life is not harmful in itself We are
not robbing anyone of a legitimate possibility by demanding that they not profit by hurting others.
This account also explains satisfactorily the exceptions we wish to allow for; if a psychologist knew
of an impending murder, we would allow and expect him or her to report it and try to stop it. In
these cases, there is no positive harm to the aspiring murderer as the unfulfilled wish was never
legitimate, and the psychologist (and others) would actually be hurt by not reporting. Such cases are
not zero-sum games where the informer is gaining something which was rightfully the murderer's.
As evidenced, a right to privacy and control over certain intimate information can be established
without assuming that we already have control and ownership over all knowledge which originates
from us.^^

Lies and Misrepresentation.

Similar reasoning can be applied to lies and misrepresentation. A lie about another person can hurt
for the same reasons an intimate truth can, and can never be justified as preventing a positive harm
to the liar. You may be able to make certain gains by selling a false story to the tabloids, but you
will never get something which was ever legitimately yours, nor avoid an unjust harm to yourself ^^
Additionally, a lie always constitutes a kind of hurt by its very nature, even if its immediate effects
are sometimes trivial. If we assume that we are social beings who have a vested interest in and right
to control our actions and presence in the social spheres of our choosing, then it becomes clear that
a lie, by its very nature, interferes with our autonomy. I have a right to decide, by my words and
actions, to whatever degree I am able, how people perceive me. I do not have the right to ultimately
decide over other peoples perceptions, and neither do I have the right to be the only one who
influences other's view of me (such a right would more or less completely negate free speech); but I
do have the right not to be interfered with and sabotaged when acting socially. Lying about me does
exactly this; it changes perceptions and therefore how I appear in the social space - and it does so
without protecting any rights of the liar, without any inherent necessity or balancing benefit.
Stallman and other programmers, authors and artists have a right to be credited for their work,
because not doing so precludes the effects of an action they have taken in the social sphere and
thereby negates their autonomy. Even if you do not hold any sort of copyright or other ownership

35 There might be other, non-exclusive objections to breaching confidentiality, such as concerns about what kind of
society we want to establish and how important various privacy -related issues and policies are in this regard. Such
themes are explored m e.g. Solove, Daniel J. 'I've Got Nothing to Hide' and Other Misunderstandings of Privacy.
George Washington University Law School. San Diego Law Review, Vol. 44, p. 745, 2007. GWU Law School
Public Law Research Paper No. 289.

36 One could imagine elaborate scenarios where such things did occur; what 1 am claiming is that in such cases, we are
talking about a gain or loss which is not inherently connected to the lie itself, and that we are therefore speaking of
some sort of consequentialist 'weighing of wrongs' and not any denial that the victim has a de facto right not to be
lied about.

Kristian Lund - Ownership of Knowledge Page 35/67

over information you have created, you still have the right not to be slandered or lied about
regarding the fact that you are the creator of said knowledge. Such rights do not, with any necessity
or even plausibility, stem from any ownership, but rather from the inherent hurt embedded in the lie
itself - along with the fact that there is no legitimate reason to allow the lie.
Some 'lies by omission' might, however, be permissible, if correcting the falsehood requires some
non-trivial amount of work. Using a quote or joke in passing (outside of academia) without
attribution is probably acceptable - we assume that such material, along with idioms and invented
words, have an author beyond the speaker and the requirement that we must remember and mention
those is an actual burden. Abstaining from mentioning a source can only be justified by reference to
the work it necessitates, not the omission itself - I am not required to find the original oral author
and storyteller of a Grimm story before reading it to a child, but not mentioning who wrote it down
initially would be bad form if I chose to publish it somehow. In the digital age, removing or
changing a notice to such an effect is actually more work than letting it stand; a fair provision on
these matters would presumably require attribution whenever the original author is known to you or
obvious.

Mispresentations which do not involve a direct true of false statement can also cause similar 'social
harm', as they constitute an implication of association with the user, his viewpoints and the event in
which they are used. Having my picture on a webpage about satisfied McDonald's customers would
gravely belie my views on the matter, even if there is no direct statement or mention of my name.
This can be accounted for in two non-exclusive ways, both of which do not assume that I have any
inherent ownership as such over my picture. The first is simply to 'unwrap' the implied statement
and expose it to the argumentation above regarding lies. In some cases, however, such a statement is
at best ambiguous or simply non-existent. The other reason to allow a person control over the use of
his or her picture is that one's likeness is an integral part of their social existence. How others have
seen me will somehow influence their views of me and my credibility in certain circles - allowing
others to decide how they are going to present me puts them in charge of a part of my social life.
Just like making a false webpage purporting to be mine and espousing political views I severely
disagree with is obviously a kind of 'identity theft' (the legal term which seems to be forming
around such crimes these days), so using my picture also steals, or at least borrows without
permission, a small part of my identity. My likeness is an important part of how I identify towards
others and myself - whatever aesthetics, positive associations or other value it holds, these are
properly mine. This is not a right to the data which makes up a digital photo of me, nor a right that
others should avert their eyes whenever I walk down the street; it is a right that others not
deliberately use my likeness for their own goals. Such an account also explains why the right to my
picture ends when there is no misrepresentation or intimate details apparent - if we believed
Volkman's theory that we simply must have an absolute ownership right as a basis for the rights
described above, then even the person looking at me in the street is actually violating my
ownership."

The same right can arise with regard to creations; poets and songwriters feel violated when their
works are used in various kinds of promotional material, again because they are misrepresented as
supporting a cause or product and/or because they feel their public image is corroded or corrupted.
There is no reason to allow others to profit from the songs of a particular songwriter, when that
profit hinges on a value which is inherent in the person. A particular melody may be worth

37 Following Volkman, presumably, our society has then forced me to give up my right to prosecute such trespassers;
whereas those outside of societies presumably still have this right to demand compensation for other's looking at
them. This means that life outside societies would be entirely impractical and ultimately impossible - this does not
reflect Locke's theories, wherein entering society must be done freely and not by necessity, and is ultimate
unconvincing.

Kristian Lund - Ownership of Knowledge Page 36/67

something in itself for its beauty and how well it fits with the message of a given ad, but it
necessarily also engenders connections to its writer and more than a small part of its value for an ad
agency may depend on this connection, rather than any inherent value in the song itself Though we
may wish for the melody to be as widely used and enjoyed as possible, at least if we do not
otherwise allow ownership of it, the close connection to and social misrepresentation of the artist is
enough to disallow others to profit from it beyond its immediate use-value, namely that of hearing it
(which does not inherently hurt the artist). I return to such considerations in the section 'Protection
of Personhood Rights by Contract' below.^*

Corporations can use an equal reasoning for their trademarks and non-functional design; selling
inferior products in someone's name may hurt their reputation. There is no reason others should be
allowed to profit from the reputation someone (or something, as in a business) has built up, if there
is no inherent use-value in doing so. In other words, this argumentation still depends on whether the
act of copying under consideration is motivated by, and directly gains from, some value which is
directly connected to the fact of who made the work in question or on the inherent value of the work
- the former is misappropriation and reaps gains which others have a more legitimate claim to,
while the latter is the more complex matter to which the bulk of this paper is dedicated.

Are Such Rights Necessarily Ownership, or Even Knowledge, Rights?

In conclusion, certain rights to control the flow of information do exist, but they do not have
ownership of information as a precondition. The ban on falsely shouting fire in a crowded theatre
does not imply that the theatre owner someone 'owns' all information regarding fire in his building,
the word itself or anything else; he simply has a right that his establishment is not demolished,
whatever means are utilised. In the subsections above, I have given examples of how rights to
control information can be based on a right to our 'biographical life'; that we have a right to the
products of our efforts, in the social sphere as well as the physical. The reputation and associations
related to one's person are properly one's own; otherwise we could not function as social
individuals. More could be said on these matters, possibly even establishing the ownership of 'social
goods' through a parallel Lockean argument - but this part of the paper is only meant to establish
two things: That even if all or most knowledge cannot be owned, there are still other relevant moral
rights which confine its use. And secondly, that Volkman is wrong in saying that pre-existing
ownership is a necessary condition for the moral rights described above - another, viable
explanation has been offered and his condition is therefore not necessary.

As was made clear throughout, this does not imply that the explanation is the only one. Nor have I
tried to establish every possible right which might pertain (such as a right to know who has learned
certain details of one's life); the point of the sections were to show that there is (at least one) entirely
different framework. The rights defended above could conceivably be trumped and certainly limited
in reference to their foundations or similarly strong rights - but they are, since they are necessary
conditions for human functioning, inalienable at heart. Some of these limits are vital to
understanding the rights explored above, and some are relevant to all rights we might have
regarding control of knowledge - these are explored below as limitations which ensure free speech,
set a natural duration and govern who can claim these rights.

38 A real world example is the artists who, in the aftermath of the Muhammad cartoons controversy in Denmark,
prevailed upon the courts to ensure that his drawing was not used in demonstrations by an anti-Islamic group. This
was fair according to the present argumentation because the value the organisation hoped to capitalise on was the
connections to the previous, larger debate and the artist's and newspaper's beliefs in that regards, to which they had
no right. <http://drdk/Nyheder/Indland/2008/03/14/122140.htm>

Kristian Lund - Ownership of Knowledge Page 37/67

Constricting Rights.

Free Speech as a Personhood Right and Restriction.

Initially, free speech can be seen a counterargument against personhood rights to control
information. Having free speech is as critical to living freely and acting in the social sphere as any
of the rights described above, and is at heart about being free to impart any information you wish on
whoever you want, whenever you want. This goes directly against others having any control over
knowledge at all; if we took the right to free speech to be an absolute, all-encompassing right, then
there would be no way to establish any sort of ownership or control at all regarding information.
However, there are natural limits to free speech, of the same sort which have already been explored
above, regarding one's right to e.g. intimate details. Yelling fire in a crowded theatre is the
immediately intuitive limitation, and it hinges on two well-known reasons: First of all, whoever
yells fire is not gaining anything which is inherently his - there is no intrinsic benefit for him or
anyone else. As before, we can safely ignore a hypothetical blackmail business against theatres; he
has no legitimate right to such gains. Secondly, the panic and damage is a positive, absolute harm.
We can limit free speech by looking at its consequences, not outlawing the information itself nor the
right to impart it - but the immediate and foreseeable effects which were intended and caused. I am
also free to swing my fist, but that right ends famously 'where the other man's nose begins'.^'
Aversion of free speech which disallows directly harmful statements still preempts a lot of control
over knowledge. Free speech would dictate that I be allowed to pass any and all helpful information
to whoever I wish, unless it somehow, predictably, would cause some other harm. Such harm must
again be 'positive' and not simply consist of being prevented from gaining riches which one was not
entitled to. This was used previously as an argument against abridging rights through contracts, and
will be again, as I return to such argumentation below, in the section 'Protection of Personhood
Rights by Contract'. Free speech is not an absolute right, and therefore it is not a valid
counterargument to the above personhood rights. But it is a strong limitation on them, and any right
to control knowledge. It pushes the burden of proof onto those who would make a claim to control
certain knowledge; they are the ones who must show that their argumentation is not inconsistently
depriving others of this powerful personhood right.

One such limitation is that we must be able to report on all factual matters which occur within the
social sphere. My right to intimacy does not allow me to control that which was never intimate in
the first place; I cannot ask everyone at a concert to make sure I do not figure on their photos nor
that they do not tell anyone I was there."^"

Another is that certain people, by their self-chosen role in the social structure, may have to accept a
high level of scrutiny and fair use of their personal information. If I am not allowed to use the face
of the prime minister on a poster, then I am at a disadvantage in making my viewpoints clear,
compared to those whom he does allow such use. When a person fulfils a certain role, his rights to
his person cannot trump my rights to report on what he is doing in performing that role. In a similar
manner, we must also allow a wide range of opinions to go free from allegations of defamation,
whenever such allegations hurt public discourse - if I cannot state my belief that a politician is lying
concerning a certain matter, society and I are severely hurt. The politicians personhood rights, do of
course still disallow my own lying or misleading.
A more complex limitation is concerned with the necessary conditions for free speech, namely a

39 To take another yet example from US supreme court justice Oliver Wendell Holmes who also originated the theatre
example.

40 Solove, in (Solove, 2007), and others would have things to say about the aggregation and further use of such
knowledge by states or other actors, however In this paper, I content myself with dealing with individuals and more
or less singular pieces of data.

Kristian Lund - Ownership of Knowledge Page 38/67

shared language. We cannot allow appropriation or individual control over parts of the very
language we are all using to communicate and act socially, this would limit everyone else in
unforeseeable ways. One type of exception can be made, however, for trademarks and similar
proper nouns which are meant to designate something - at least for that particular use. This is more
a question of disallowing others to lie or misrepresent themselves or the intended victim, and less
about complete control over a given name, design or logo - although it does amount to a limited
right to control the designator in question. But common words, phrases, idioms and phrase structure
must remain open for all to use; otherwise we are taking away other people's ability to properly
communicate. A similar case could be made for formal languages - if someone owns a particular
expression within a formal language, then the expressive power of that language is lessened for
everyone."^' I return to such concerns in the next chapter.

The Duration of Per sonhood Rights.

Another pertinent question is how long personhood rights should last. There is really nothing in the
basis for the rights which tell us anything about this, except that it can presumably last as long as
the person in question has a stake in the use of the knowledge, and is related to it - death seems the
only possible limitation which is not arbitrary. This is not to say that one cannot loose one's
personhood interest in something in another way, but rather that we cannot make such judgement
calls without risking harm to that person. When can we with certainty say that e.g. the artist of a
controversial caricature no longer has any legitimate claim to feel involved in its further use? We
can, however, be fairly certain that such personhood interests end with death...

Two possible objections to this limit does exists: The first is that various relatives and friends may
feel that they also have a personhood interest in the creation of their forebears. While such a thing is
in no way impossible, making personhood rights inheritable requires a justice system which is able
to make the same kind of impossible calls: when is a person truthfully involved and concerned
about the use and continuation of e.g. a fictional universe, and when is that person merely
benefiting from having a monopoly on writing additional material for a well-known setting? If we
believe we can make such calls, then we should also be able to make calls on whether a given fan of
the setting has a better understanding and more personal relationship with it. Such claims are
actually being made today, albeit not in court, regarding two famous science fiction settings, the
Dune universe and the Star Wars setting. While the former consists of hardcore fans decrying a drop
in quality and misrepresentation of the original author's themes and ideas, the latter has a multitude
of fans clamouring they have a better grasp of the world, and cares more for it, than its still living
creator! While we can give primacy to the creator's claims of affinity, even though they might be
'wrong' or weaker, heirs of a creator have no inherent right to have their sympathy for the creation
considered above that of others'. The additional knowledge about its 'design' and the causal
connection between the author and his work creates the strong presumption that the author is more
closely connected to the work."^^ Note that issues of inheriting one's forebears are irrelevant.

41 These things actually happen, even with time-honoured 'free' languages like basic arithmetic. Mathematician Roger
Schlafly has been able to receive a patent mcluding a claim regarding the use of a large prime number;
799441209771611054812721173333160052293377675704670764996367396268620083843295023910398107072
83695998 1631 46464827207068260 1 8360 1 8 1 1 96843 1 542247483 822 11019. Such numbers are actually vital for
cryptography, and hence our ability to communicate secretly; ownership of all prime numbers with a certain number
of digits would pre-empt others from encrypting and hiding their messages effectively. 1 risk printing the number
here as Mr Schlafly appears to have patented it to make a similar point, <http://www.sciamdigital.com/index.cfm?
fa=Products.ViewlssuePreview&ARTICLElD_CHAR=65B7FFE0-3A2F-4F29-93D8-6355A5F8F0A>

42 In the section 'Protection of Personhood Rights by Contract', the causal connection is explored as possibly doing
more work than this.

Kristian Lund - Ownership of Knowledge Page 39/67

personhood rights and whatever gains one can get from them are two different things - that an
author did not capitalise maximally on a creation in his lifetime is no argument for allowing his
heirs to continue to do so. What gives the original author certain personhood rights regarding his
creations is the inherent 'use-value' of not being misrepresented and have his social actions 'stolen' -
being the son of a famous author is not an action we must protect in order to keep anyone's
autonomy intact, and the potential market value benefit from being able to write e.g. canonical
Dune books and selling them as such is not connected to the heirs of the original writer before we
make that connection legally."*^

Secondly, we may want to honour the wishes of the deceased, even in death. We certainly have an
intuition that such deathbed wishes are at least as important as any other wish prior to that point,
and people routinely make arrangements for their children, assets and interests beyond their death.
Personhood rights do not, however, allow complete control over knowledge; only the possibility of
disallowing certain actions as they interfere with his autonomy as a person - even if we decide to
honour the wishes of the creator beyond his death, those wishes will be bound by this. Thus, an
author of a book cannot bequeath the right to write within his fictional universe to another person
exclusively, but he can make it known that a particular writer's sequels are to be considered canon.

The InahenabiUty of Personhood Rights.

The personhood rights are 'strong' rights in the sense that they are needed in order to be able to
express oneself as an individual - without certainty that I will be recognised as the author, writing a
book will not be as socially and personally satisfying. They cannot be taken away, at least not
without admitting that one is perpetrating some measure of harm against the person in question, and
nor can they truly be transferred

Personhood rights stem directly from being a certain person, and boil down to a right to the truth
about one's own person, and that this truth not be exploited or subverted. Such a right cannot be
transferred to others; it makes no sense that I can contractually sign away my right to privacy. I may
enter a television show and let them film me in the shower, and hence decline to enforce my right;
but I cannot sell the right to determine when I will be filmed at any time in the future. Neither can
people sell themselves into slavery, nor sell their votes in a democracy; the right to decide over
one's own body and the body politic is a right which is inherent in you as a person and actually a
part of who and what you are. A sale of such would amount to a fracturing of the person, which
prevents true autonomy, not to mention legal culpability; there can be no 'person' without that
person having these rights. It is inconsistent with being what you are to sell these rights and
continue to exist as that which you are.**

Hence, one cannot really sell these rights and societies today do honour that fact in e.g. disallowing
the selling of votes."^^ We do allow, however, the 'leasing' out of rights and certain small sales; we
can enter binding agreements which limit our autonomy and we can allow photographers and film-
makers to use our portraits however they wish. One distinction becomes crucial in understanding
these matter: whether I am relinquishing some part of a right in relation to that right as a whole, or
with respect to something external. The latter is what we generally allow, and which does not

43 This parallels the arguments against contracts which have market value only after having been made legally binding.

44 Coincidently, this invalidates, while mirroring, Locke's account of slavery. Accordmg to Locke, one can only
become a slave when one's life is legitimately forfeit and the person originally having the rights is therefore
somehow destroyed. The problem is, of course, that the person is not destroyed and therefore must retain his rights.

45 In a strange example of life imitating philosophy, litigation to this effect started against a would-be vote-seller a few
weeks after 1 wrote the present text: <http://www.parentdish.com/2008/07/06/teen-offers-vote-for-sale-on-ebay/>

Kristian Lund - Ownership of Knowledge Page 40/67

necessarily become a problem; actors allow their likeness to be used in a film and subsequent work
in related material including advertising and sequels, and, to the dismay of wage-earners, there are
certain limits to what I am allowed to do at my workplace without being in breach of contract. The
former is more problematic, and can, in fact, not be allowed consistently; these would be cases
where e.g. someone signed away their right to ever work within the field of their current employer.
The 'external cases' actually have to be allowed; if a picture constitutes a portrait of two people,
then consistency requires that their rights, with regards to that picture, be shared - meaning that
person A's right to publish is contingent on person B's acquiescence and vice versa. So we need to
allow cases where my rights regarding a certain external factor is limited. What we do not need, and
is in fact inherently inconsistent, is to allow the selling of a part of a right as such. As an example,
we could take an amateur actor in a novelty film who signs away his right to ever appear in another
film. While most people can certainly live an entire life without missing the spotlights, we can
never know if this is the case - maybe he discovers that this is the only way he can express himself
In either case, the autonomy of the actor is limited in an unacceptable degree; he is no longer a truly
free individual and this is simply inconsistent with being an individual. Further limiting the scope to
e.g. black and white movies, or silent, independent, black and white movies about loneliness run
into the same problems - only when the range is directly related to the first film does it make sense
to allow limitations because here, the case can be made that the actor is acknowledging another's
equally important personhood rights not to have his work diluted by an apparent sequel.""^ Hughes
explores this in (Hughes, 1998) in his section on 'The Moral Shop Right' - an inalienable right to
use and keep using skills, styles and minor parts (and possibly more) even though one has sold the
all rights to the original work. Hughes is working within the current legal framework, and is
proposing a 'fix' to existing copyright law, but his arguments revolve around there being some moral
rights which cannot, in fact, be sold at all.

Protection of Personhood Rights by Contract.

Abridging Others' Rights for Legitimate Reasons, and Inherent Limitations.

From these legitimate personhood interests, it is possible to present a more compelling version of
the contract arguments explored above; again trying to establish the right to demand any and all
restrictions on knowledge after its release. To attempt the broadest possible strategy, I will also use
intentionality again, as the candidate to what this right derives from in the first place. As will be
shown below, this version of the argument does fare a lot better, but remains very restricted because
of its more limited basis.

Instead of arguing that my intentionality amounts to some sort of labour, this argument insists that
intentionality is a personhood interest which I must be exclusively in control of From this it is then
argued that I can require any and all demands met, also in the future, if I am to release some piece
of knowledge. By using intentionality, this argument attempts to reach beyond the more limited
rights established above, seemingly to a universal justified ability to control all knowledge which
flows from one's person.

In this section, I will look first at the argument itself, and its inherent appeal and then go on to
discuss its intrinsic limitations. Certain counterarguments are explored, each adding increasing
limitations on the applicability of the argument. This leads directly to the conclusion of the present
chapter, in showing how further complexities regarding the world of knowledge must be explored;
leading in to the next chapter 'The Commons as an Ecosystem'.

46 Grey areas do exist, but discussions about when a given restraint is so broad as to make up an entire part of a
personhood right are beyond the scope of this paper

Kristian Lund - Ownership of Knowledge Page 41/67

There are two compelling arguments in favour of this 'right to demand restrictions'. The first is that I
have a very real intentionality interest to protect, which extends to the effects of my actions. If I do
not wish to be part of something, then the rest of the world cannot force me. Volkman supplies the
example of Jarle Aase, a man who required that a program he designed 'not be used "by
governmental institutions and mainstream political parties.'" (Volkman, 2000). It seems fair that if a
person does not wish to aid the government, then he should be allowed to restrict their usage of his
resources, even when he is not directly hurt by its expropriation. This is, in effect, a claim that
expropriations can be wrong for more than one reason; it is not only that something is taken from
me which I could have used otherwise, but also that I may have personal reasons to disagree with
the goal you wish to put them to work towards - and I have a right not to help a cause that I oppose.
The other argument depends upon my right to demand any price I want when negotiating release of
knowledge which I have access to. This is the exact same argument as was made above in previous
sections concerning contractual abridgements of others' rights, but with a strong response to the
counterargument it was met with. For instance, we can imagine the physicists at Los Alamos
demanding that the atomic bomb they were inventing could be used exclusively on military targets
(one can certainly imagine them wishing they had done so). In this case, they would be protecting a
legitimate right instead of seeking an artificial market value. Such moral desires can be described as
a sort of 'negative use-value' - it has a real value to them to know that they are not involved in
genocide (not to mention the value it could have for Hiroshima citizens).

Certain limitations are intrinsic to such an approach, however First of all, such controlling rights
can only be established at the time of the contractual agreement; the promises become a 'moral
entity' in themselves at that point in time, divorced from the knowledge which was the basis for
introducing them. Unless that right is established independently, the original creator cannot demand
a re-negotiation of the terms. And if the contract is not binding on the creator not to make additional
demands or declare it void, then it has no value to the other parties, so total re-negotiation rights are
not likely to be tolerated. Other rights can, however, still pertain for other reasons; the natural,
inalienable personhood rights described above, could restrict the use of the knowledge additionally.
It is also possible to simply include certain, limited, demands in the original contract about future
decisions and this actually happens regularly today both in EULAs which are subject to change and
when copyright notices reserves 'all rights'. Whether this is truly possible and fair remains to be
seen.

A more powerful qualification is that only those who endorse the contract can be bound by it. This
is self-explanatory, but important; especially when one considers whether accidental or wilful
leaking of information is still restricted. In cases where a third party conspires with a contractor to
subvert the original agreement, he might be morally and legally culpable - but if some knowledge is
leaked without my involvement, it is unclear why I should not be allowed to use it. Since ownership
has not been established (in fact, only contractual control is even attempted) there is no legitimate
claim that such a person is in any way fencing stolen goods; a right to keep secrets is not a moral
demand upon others that they ignore your failure to do so. Furthermore, only the knowledge
contractually agreed on can be limited. This means that unless some previous contract existed, the
knowledge that there now exists e.g. a new technology is not itself restricted.

A Simpler way to Fulfil Personhood Rights, and the Counterarguments which Follow.

The present contract attempt to establish control over knowledge is based on necessity, and the most
direct counterargument responds directly to this. The argument goes that one must necessarily be be
free to decide, without outside interference, the effects of ones actions and hence have a legitimate

Kristian Lund - Ownership of Knowledge Page 42/67

interest to protect when negotiating a contract. But freedom from interference is not the same as a
right to decide consequences arbitrarily. People have a right not to be interfered with, in e.g. tending
their crops, but they do not have a right that others guarantee the success of their efforts. The
scientists of Los Alamos have a certain negative freedom; we cannot coerce them into creating a
bomb for us. But they do not have a right to the positive freedom of being able to create a bomb
which will only be used under certain conditions. Society can elect to give them that freedom,
provided this does not somehow violate other principles, but it does not have to do so in order to be
just, as they did not have that possibility before society came along. Intentionality and autonomy are
not harmed by this; there still exists the freedom not to create or release the invention if the
consequences are offensive to you.

That said, society or another party might still want to agree to such a contract, if the gains outweigh
the restrictions. But society does not have to enforce all such contracts, because your legitimate
interest is already fulfilled; you can avoid the consequences you dislike by not creating or releasing
the information in question. We do not have to supply you with more rights or possibilities, though
there might be other reasons to do so. There might, in fact, be reasons to disallow a wide range of
such contracts.'*^

One such reason could be competing personhood rights and their inherent inalienability. In fact, this
can be structured as a general counterargument; I cannot agree to a contract which limits my
freedom of speech, because I need my freedom of speech to be fully human, which I do not stop
being by signing the contract (a parallel argument can be constructed with similar rights). When
Stallman writes on 'Damaging Social Cohesion' in (Stallman, 2002)"*** he makes this argument as one
of virtue ethics, and about the consequent harm to society - it becomes more convincing against the
present personhood argument by adopting its focus on necessity. 'Signing a typical software license
agreement means betraying your neighbour' (ibid.), Stallman claims. More important to the present
discussion, it also means signing away parts of your autonomy regarding sharing information and
helping others; the inventor cannot ask it and you cannot give it.

The proponent of ownership of knowledge could answer that, as was in fact established above in
'The Inalienability of Personhood Rights', some restrictions are routinely allowed and
unproblematic. A possible boundary was also proposed; that cases where the restriction rested upon
a specific external factor could be allowed, but that no universal restriction of my autonomy was
permissible. Universal restrictions would include usage of techniques and methods; if I cannot use
or share a particular mathematical formula or one of only a few possible ways to make a fire, then I
and those I would share with are limited in relation to our human functioning - there are basic
humans goals we cannot fulfil or help fulfil. Still, we could allow contracts which pertain to a
specific expression, such as a piece of music or a book.

So, a valid contract cannot demand something which cannot consistently be given, but nor can it
demand something to which you have no right. The right to negotiate and ensure oneself certain
restrictions hinges upon those rights being legitimate; otherwise, the attempt collapses to a sort of
blackmail, as described in the section 'Abridging Rights by Contract' from the second chapter. The
village inventor with the secret of fire could demand other things than economic wealth, maybe that
war was declared on another tribe, or that certain religious rites he believed in should be observed
whenever a fire was made. A sufficiently philosophical leader would not hold a contractor to his
promise to observe strange gods, and nor would he lead the tribe to war because of one man's

47 And in fact, we already do so; copyright holders are not allowed to restrict e.g. use in parody and patents cannot be
perpetual.

48 Stallman, Richard M. 'Why Software Should Be Free.' In Free Software, Free Society: Selected Essays of Richard
M. Stallman. Free Software Foundation (October 2002).

Kristian Lund - Ownership of Knowledge Page 43/67

wishes - the inventor simply has no right to decide these things and his contract remains a form of
blackmail if he tries to do so.

What can be demanded is restrictions which are directly relevant to the invention and to the
personhood interests of the creator. The scientists of Los Alamos could demand that their weapon
not be used on the civilian population (before inventing it) and the government would have had to
consider this; rejecting the offer as any other agent can do or its legitimacy, as the guarantor and
decider of that contracts should be possible (as per the first objection that we do not need to secure
such interests).

This means that the attempt to expand ones rights collapses: you cannot reserve all rights to a given
piece of information, but only all rights which it is fair that you be given through e.g. personhood
interests. With regards to technical innovations, such as the research forming the basis of the
nuclear bomb, the government could not, in fact, agree to uphold a contract which limited the usage
of the theoretical physics and related techniques themselves. Signing these away would constitute
relenting basic human rights to know about and manipulate certain domains of the world we
inhabit; such universal knowledge and capabilities are the polar opposite of personal knowledge.
For specific 'works', which are not in any way universal but quite unique, such as the picture of a
sunset on the Everest, one can make more stringent demands. But they must still seek to cover a
legitimate wish; I can ask that you not further share the picture before I get a chance to show it at
my grand opening where I can enjoy people's first reaction, but not to get an inflated market value
of it. Again, grey areas abound and it is no small task to more properly delimit what constitutes a
legitimate personhood interest - such detail is unfortunately beyond the scope of this paper.

Conclusion.

Non-ownership Rights to Knowledge.

In the first sections of this chapter, I followed Dewey and Nozick in their argumentation regarding
Lockean property justifications, attempting to use their argument and insights within the world of
knowledge. It has been shown that there exist many cases where we have a genuine interest in
controlling knowledge, and that a just society should ensure us this control. It was also shown how
this is not any any way contingent upon, nor even connected to, any sort of ownership of
knowledge. Still, a 'virtual' sort of ownership may be the easiest way to manage such rights, and
may be a just way for a society to handle the matter legally - as long as provisions are made to
secure that such rights do not overstep their bounds and become unjustifiable limitations on others'
rights. Attempts to limit and extend these rights were explored, with any real success confined to
the former - contractual attempts to secure more rights were shown to be ultimately limited to
securing what rights you have 'naturally'.

Personhood rights were shown to be limited, not just on instrumental grounds, but from a demand
of consistency, in that they cannot overstep others' personhood rights. From the general right to free
speech, the burden of proof was shown to be on those wishing control to show that the rights they
desire are both relevant to the knowledge in question and necessary for them to function as
individuals. Though certain rights to control knowledge exists, these do not imply and indeed seem
to severely limit the possibility of, any ownership of knowledge; a society can secure such rights
through laws against privacy invasion, defamation, dangerous conduct and similar.

Kristian Lund - Ownership of Knowledge Page 44/67

The Commons as an Ecosystem.

Introducing Ecology.

Structure.

The present chapter will examine the implications of how we conceptualise the commons, including
the social ramifications. I will sum up previous points concerning how we can think about
knowledge and information, and arrive at a conclusion that this 'other world' is never a natural
commons, but an already artificially constructed and improved infrastructure. It is from this that we
appropriate or borrow, according to which theory we ascribe to; this chapter therefore focuses
primarily on the 'enough and as good' condition found in Locke. Former conclusions made in this
paper are still valid, but some are superseded or further restricted by what is arrived at here. It also
revisits certain themes that have been brought up before:

In the previous chapter, I explored how a given individual might need specific rights regarding
specific knowledge. Here, I will expand upon such arguments, showing that there is also a base of
knowledge which we all need, and which society needs, either in order to be just, or for pragmatic
reasons.

As promised, this will also mean a more detailed return to the problems of a 'Tragedy of the
Commons'. Although there is no danger that the world of knowledge is 'fished dry', how to best tend
to this commons and its infrastructure is still an open question. Certain rules, restrictions and
incentives may very well result in a better utilisation of knowledge for everyone. Such an argument
can and will become part of claims regarding the Lockean provision that we do not hurt others in
our appropriation, but is, at heart, an consequentialist and pragmatic discussion of how to best run a
society and will not be explored in more depth than is needed for this paper's focus on natural
rights.

The Infrastructure of the Commons of Knowledge.

Throughout the paper, I have added increasing details and restrictions on how we can conceive of
the world of knowledge. Obviously, accounting for what knowledge is, outside of us and 'within us',
is an entire field of philosophy and too big a task for this paper; I will present a functional view
which allows us to talk about ethical matters regarding knowledge. Two things are vital regarding
knowledge, when it comes to the question of property and other reflections about human use of
knowledge:

The first is that knowledge forms a hierarchy of interdependencies, even before we access it. Data
can obviously be part of a larger collection, such as my address being a part of the telephone
directory of my home city, but so can algorithms and formulas; Pythagoras' Theorem is part of
basically all engineering. There is always a larger collection or organisation of functional parts of
knowledge imaginable. Our own uses follow these structures; we cannot understand complex
mathematics without understanding elementary algebra and we cannot follow the plot of a novel
without understanding who the main characters are. Secondly, our control over knowledge is
control over human distribution of it. We cannot (at least not yet) control what people think, but
what they learn and teach. An idea cannot be outlawed, but the book it is written in can be burned.
All this invites a view of the commons, at least as it appears to us in our creation, usage and
distribution of it, as a 'causal road system'. Our language, books we read, things we are told and
what we figure out by ourselves are all necessary preconditions, 'roads', which lead to specific

Kristian Lund - Ownership of Knowledge Page 45/67

pieces of knowledge; it is the control of these roads which is the issue of the present paper. Pieces of
information are themselves points or areas in this imagined 'world of knowledge'; meaning they are
also what makes up the roads. When learning something by reading a book, you are using your
literacy, your knowledge of the language, a certain cultural understanding of what is implied in the
terms and maybe some rather specific knowledge about the subject; and any one of these parts, or
their constituents in turn, are also pieces of knowledge, as well as roads to a lot of other 'places'.
This was touched on in the section 'The Commons' in the second chapter, where it was shown that
improvement of some amount of knowledge is in fact creation of something new; although such
appropriation looks like that of grown crops from one's field, or berries from the forest thicket, it is
important to note that the resulting new knowledge is itself a fertile field for further improvements,
creations and, perhaps, appropriation."*'

Copyright becomes, in this metaphor, a series of privileges which allow control over who gets to
use a specific road and for what purposes; patents would be the right to control everything, even the
creation of other roads to the same region. Personhood rights, as explored till now, limit the usage
of such roads which are sufficiently 'close' to oneself; as will be exemplified below, some such
roads even extend into ourselves. In fact, the metaphor merely explicates the view already in use in
this paper and in the legal system; what is important is the effects of your knowledge, your use of it,
the control you have, etc. - no one is punished for using the word 'fire' or for transmitting a large
binary number, but for causing a panic or allowing somebody else to use a computer program. The
emphasis on the inherent structure will turn out to be critical in the following sections.

Who Has a Right to the Full Societal Use Value?

One classical liberal counter can now be dealt with decisively, since it has been shown that the
commons of ideas is not a simple, natural world of untouched artefacts. The counterargument in
question is a close parallel to Nozick's argument against taxation; letting me have anything but the
full measure of value from my labours, whatever they might be, is the ethical equivalent of forcing
me to perform that labour. Though the commons may have been created by human endeavour, I
cannot repay earlier generations for their contributions, and there is no agreement or contract which
forces me to pay anyone else.

This suffers from the major problem that others are contributors as well. Bygone inventors and
contributors may no longer be around for you to repay specifically, but it does not mean that
whatever you create is therefore solely your creation, nor solely yours. No intellectual work done
today is done in a vacuum, but always depends on work that has gone before. Unless it has been
argued that our creator has some special right to such knowledge (which would be circular, this is
the very thing under discussion), we must admit that we should all benefit from earlier generations
toils and ideas. As I write this paper, I depend on computer technology which stretches at least back
to Leibniz in its origin, and philosophical theories which arguably started with Locke a few decades
earlier; it seems very odd that I should somehow become the sole owner of the bits I put together,
when more than 300 years of cultural history and research also go into it. Just because my work was
the latest in leading up to this paper does not mean that other contributions were not equally or
more important. I may not be able to repay Locke for his contributions to philosophy, but I can
certainly do better than proclaim myself the sole creator of this paper and its ideas.
The resources which I am putting into this paper are not natural ones, but human made. If a new

49 What exactly we or our labour constitutes in this metaphor depends, of course, on one's metaphysical leanings. The
abihty of mechanical entities to execute algorithms and create something new questions whether there is anything
'travellmg' these roads at all; while we intuitively seem to experience ourselves as some sort of Cartesian 'pineal
gland' which navigates this world. The strength of the account is that we do not need to answer such questions, but
merely admit that there is something that we call humans which uses, improves and 'lives in' this commons of ideas.

Kristian Lund - Ownership of Knowledge Page 46/67

intellectual creation and its fruits belong entirely to its creator, then consistency demands that the
ideas used in its creation must also belong to someone and those (uncountable) someones should be
have their say and/or be paid. This is simply not possible; human thought would grind to a halt
shortly after the invention of language, if we had to check the entire causal roadmap behind us
before utilising the new idea we have discovered. '^° Furthermore, such an approach would be
present-centric; if I am given the spoils of my work as well as that of Locke, Leibniz et al, then
future creators will be legally obliged to somehow compensate me whenever they use my ideas -
but I was able to freely use the immediately preceding concepts and theories. In any shift from a
free culture of interchange to a proprietary one, whoever first appropriates in a new field is getting
more out of the existing knowledge than previous creators took and future ones will be able to take;
this is an inherent unfairness which must be justified, shifting the burden of proof to those who
desire title to some property of ideas.

There might, however, be certain pragmatic measures necessary for ensuring a healthy commons
which guarantees what we need, that a just society should ^xow\&q, this is explored in the following
section. In the last part of this chapter, called 'The Expansion of the Commons', I look at some
possible further steps which can be made to ensure the best possible commons for all, which a just
society could implement.

A Necessary Infrastructure.

Personhood Rights Necessitating a Healthy Commons.

There is, in fact, a large body of knowledge which we need and cannot even parcel out as property,
beyond the kinds explored in the previous chapter on personhood. This is knowledge without which
we would not even be ourselves, or at least be entirely unable to act as humans. It follows that this
knowledge cannot be controlled by others, at least not to a degree with which they could withhold
from us our ability to be that which we are; just like we cannot give up our autonomy, we cannot
retain such inalienable traits without freely using certain kinds of knowledge. Ensuring this
knowledge for all cannot, as most potential personhood problems, be solved by reference to other
laws, such as those against slander or causing panics, but directly necessitates tending to the world
of knowledge we share. Some of these parallel the kinds of knowledge which Hughes has identified
in his section on The Common and Ideas That Cannot Be Granted Property Status from (Hughes,
1988), but without the consequentialist approach and resultant suggestion that we can allow
ownership of knowledge until those cases where we cannot and must presumably 'take it back'.
Instead, I focus on establishing some useful categories which can be owned with varying
consequences.

Below follows a preliminary attempt to establish such a baseline of knowledge, over which
ownership would be highly problematic; it is not meant as a full account, but exemplifies that there
is knowledge which cannot be owned and hence that society does have an obligation to secure it for
all. The categories are, then, not necessarily complete, nor static; a change in society, technological
breakthroughs, etc. could all change the specific contents of these categories."^' The classes of
knowledge explored below are all examples of knowledge which become a part of ourselves, and
thereby inalienable. At first glance, such a view might seem impossible - how can knowledge be
both a part of me and used by others? In reality, this is no stranger than thinking about ones legs as

50 Software patents in the US are in fact already being used to make such demands, with the resultant retardation of
development in evidence.

51 This is parallel to the second chapter's section, 'What Was There', where it was attempted to find some categories
which could be excluded from the commons, the present attempt is to look for knowledge categories which must
remain free.

Kristian Lund - Ownership of Knowledge Page 47/67

part of the physical world; I am a person with the capability to move around the physical world, and
thanks to my knowledge and command of computers, I can also 'move around' on the internet
(absorbing more knowledge). Amputating my legs is wrong because it takes certain abilities from
me, just like telling me I cannot use certain phrases or ideas takes away abilities.

The Need for Free Languages.

Natural language is, in fact, the first and most obvious class of knowledge which must be free. The
coding of connections between natural objects, increasingly complex concepts and their expressions
as sound or writing gives rise to higher thoughts and the ability to communicate. Individuals all
need the ability to express themselves and understand others, if this ability is restricted, we become
less than free; if it does not exist in our childhood, we can never rise above a certain mental age.
Whatever the exact relationship between thought and language is, there is no question that
becoming a thinking and autonomous agent necessitates social interaction and inheriting a lot of
knowledge - the language itself and the rest through language; who we are does not form out of a
vacuum. ^^ As a society, we also need a free and common language in order to function, and denying
us the free use of it would diminish our capacity for social interaction, critique, interchanging ideas
efficiently, etc. Political dissent could easily be stifled if the right terms were unlawful to even
speak, and even simple, everyday interaction would suffer if one had to guard every word and
expression for possible infringement.

Note that languages are arbitrary, but valuable because they are held in common; an virtual infinity
of other languages would be as good as Danish, but not to someone living in Denmark; one cannot
own a particular language and claim that nobody is harmed as they can simply chose another.
Formal languages, then, have an even stronger claim to be free; they are the artificial laws created
to understand the world of knowledge, much as we have data mapping and laws about the physical
world around us. A given concept (such as an algorithm) can only be expressed optimally in an
efficient formal language in a single way; if anyone were to own that way in the major formal
languages used, they would, for all intents and purposes, own the concept itself If I control usage of
the formulae: 'Y = aX + b', then no one can draw a straight line in math class, if I control it as
expressed in all known machine code computer languages, then no electronic device will be able to
draw a straight line! The results seem ridiculous, but are the natural consequence of such
ownership. It is simply not possible to distinguish clearly between the expression and the concept of
an idea, when it comes to formal languages, because they express the idea fully. A formal language
'breaks' almost the second one cannot use one particular expression; while I was an assistant teacher
in formal logic, I would have been unable to efficiently explain the material implication, '(A -> B)',
if someone held copyright over its most easily understandable equivalent: '~(A '^ ~B)'. Though this
does not rule out the ownership of sufficiently large quantities of code or mathematics formulae, it
does mean that the smaller ideas, tricks and functions which constitute it, cannot be owned without
substantial harm to the language in question; we might otherwise be able to justify and grant
copyright, right to attribution or other similar privileges to a mathematician's entire master thesis,
but not to the specific expressions or transformations.

Can a Proprietary Culture be Free?

Apart from language, our cultural background also has to be free (as in freedom). Expressions of
art, high or low, are made from, and with reference to, earlier pieces of art; and art creation and

52 Locke would wholeheartedly agree, and go even farther; classifying us as complete tabulae rasae.

Kristian Lund - Ownership of Knowledge Page 48/67

appreciation is by necessity learned using the same resources. If access is limited to the public, we
have a sub-optimal use of a resource; if future creators are not allowed to be inspired by, and freely
sample from, past cultural achievement, development of any art will slow to a halt. Or rather; the
ability of the common individual (who does not own a portfolio of copyrights) to influence culture
is diminished. Wherever it lies exactly, there is a point at which such control inhibits citizens' ability
to create and be part of their own culture; just like being legally barred from using the language of
the culture one lives in.

Additionally, we can follow Bourdieu's view where cultural knowledge is a sort of capital and zero-
sum game. Those with more cultural capital (a large component of which is a certain kind of
knowledge) are better off, not by virtue of any inherent value in their knowledge, but directly
because others do not have that knowledge. Enforcing ownership of purely intellectual cultural
artefacts fortifies this imbalance. This does not rule out all ownership of such artefacts, even if they
are entirely made of easily copyable digital information; but it does impose the restriction that such
artefacts enter the commons after a limited time. If not, we will eventually end up in a society were
all art, entertainment and common cultural symbols are all owned, and cannot be used freely. "^^ As
the production, time of influence and obsolescence cycle of cultural artefacts speeds up, as they
seem to do exponentially, the time allowed until a given creation enters the commons should
become comparatively shorter - it is fine and well that we are able to read, copy from and reference
Shakespeare, but especially to young people today, there is a bigger need to reference popular TV
shows or book series. Such activity could be writing and reading fan fiction to further explore the
fictional universes, and it regularly leads to lawsuits. "^"^

Within the 'free culture movement' and beyond, these and related points are explored in more detail
than this paper can do justice, by writers such as Siva Vaidhyanathan in Copyrights and
Copywrongs (Vaidhyanathan, 2001)" and, famously, Lawrence Lessig i.a. Free Culture (Lessig,
2004)^'^

Intellectual Tools.

A parallel argument to the above could be constructed concerning facts; we all need to understand
our past and the world around us. Furthermore, certain information and intellectual tools become a
part of us to such a degree that we cannot tell where they stop and we begin, and consequently not
regulate their use without losing our liberty. Language would also remain inviolate for this reason,
but this category extends far beyond skills for communication. Just like Heidegger's famous
hammer disappears for us when we use it, many, if not all, of our intellectual 'tools' disappear for us,
and only manifest themselves as their results or an ability we have. Many widely different
epistemological theories support such a view; not only a phenomenological approach, but also
current neurological research^^, externalist theories or Andy Clark's arguments for the 'extra-cranial'
mind (Clark, forthcoming) support the view that knowledge becomes part of ourselves - whether
they posit variations of 'we are the world', or 'the world is in us' or some other configuration.
As mentioned, an easy example would be language, which we hardly notice our own usage of; it is
more surprising that even something like playing the guitar involves such 'absorption of
knowledge'. For instance, when finding a suitable scale on which to improvise, one uses a specific
mathematical method, an algorithm, which uses the chords over which the solo is to be played and

53 Children today are allowed to see Mickey Mouse as the epitome of cartoons and fun, petition their parents for
Disney movie tickets and to hug him at Disneyland for a price. They are not allowed to draw him on the wall of their
daycare centre. <http://query.nytimes.com/gst/fullpage.html?res=950DE2DC 1 33AF930A2575BC0A96F948260>

54 Such as the Harry Potter fan who was sued for making a lexicon of terms particular to the books.
<http://mycropht.wordpress.com/2008/04/24/the-harry-potter-lawsuit/>

55 Vaidhyanathan, Siva. Copyrights and Copywrongs. New York University Press (2001).

56 Lessig, Lawrence. Free Culture. The Penguin Press. New York, (2004).

57 'Tool Use Is Just a Trick of the Mmd.' Michael Baiter, ScienceNOW, (28 January 2008: 2).

Kristian Lund - Ownership of Knowledge Page 49/67

their relation to the tonic key of the composition. However, an experienced guitarist is not
performing these calculations in his head, at least not consciously; the algorithm has disappeared
and become part of one's 'musical language', 'fingers' or 'ear'."^**

Such processes of knowledge absorption start long before any believable age of consent, making
any claim that 'use implies acceptance of terms' instantly suspect. One such example, which blurs
the line between language and tools, is of a small boy under the age of three I know, who, when
presented with a video on a hand-held device which he cannot see properly, will attempt to zoom
out by performing a specific gesture on the screen. Apple Inc. is currently seeking a patent on that
functionality, meaning that the toddler in question would already be unfree in where he chose to
apply his human-computer communication skills before even knowing what that means. ^' If his
parents want him to be able to use a cell phone or similar device properly, they will have to buy him
an Apple product, as no one else would be allowed to copy that function. I cannot think of a more
intuitive symbolic expression of 'zoom' than pinch my fingers open and close, and we will certainly
run out of good candidates quickly, if patents were allowed on such expressions in the formal
language we use to interact with our technology.

If we were to allow the ownership of such an algorithms and symbolic expressions, either through a
patent or by some extension of a copyright on its expression in the one set of formal languages we
use for such explication (mathematical, programming languages and musical notation), this would
restrict musicians and toddlers in unexpected ways. Our guitarist would have to be able to tell when
he used what formula, either to restrict himself or to pay for its use; something which he is not able
to (except maybe through a subsequent detailed analysis). And what happens when the improvised
piece becomes the inspiration of a new piece or part of the basis for a style of play? If guitarists are
to be allowed to play and create new music freely, and toddlers to interact with technology without
tying themselves to a particular company's product for life, then such algorithms cannot be owned.
The same would go for all knowledge amounting to a tool which can become part of ourselves,
such as philosophical theories, ability to use an interface such as keyboards or computer operating
systems, etc. Restrictions on these abilities would always negate the autonomy of some, in an
unacceptable way parallel to the ones shown to be so in the section 'The Inalienability of
Personhood Rights' in the previous chapter.)

Encumbering the Infrastructure as Unfair and Unnecessary.

As stated in the introduction to this chapter, these analyses do not depend on any metaphysical
model, but simply on the fact that knowledge comes to us through a causal 'road system' that we
help create and which extends into ourselves. Whether knowledge is instantiated in any Platonic
world or not, it certainly makes up a significant part of me and the positive freedoms which make
me the autonomous individual that I am. Furthermore, we can see how any significant accumulation
and restriction of key technologies or cultural information would make individuals and society less
than free; loss of expressional power, possibility of involving oneself with ones culture, key
abilities, etc. Consequently, it becomes a duty of a just society to defend these rights and freedoms;
we must have a large class of knowledge in a perpetual commons, such as a free language to
communicate what we need, the cultural expressions which surround us and the abilities which
make up ourselves.
This further reinforces the critique made in 'Who Has a Right to the Full Societal Use Value?'

58 Depending on which guitarist you ask. My httle brother, to whom I am indebted for the example, feels the latter is
the most precise. I doubt we can find a guitarists who feels that he is domg math, or one who can tell us what math
he is using when.

59 Gardmer, Bryan. 'Can Apple Patent the Pmch? Experts Say It's Possible' In Wired Magazine (02.22, 2008). Available
at: <http://www.wired.com/gadgets/miscellaneous/news/2008/02/multitouch__patents>

Kristian Lund - Ownership of Knowledge Page 50/67

regarding how much of our creations are ever truly our own; anything we do, including intellectual
work, depends on the mass of knowledge which we have absorbed. To insist that one is entitled to
all possible revenue and benefits from a given new invention is to appropriate from a commons of
knowledge which multitudes have helped fertilize. It is not unjust for a village to insist that one
share a percentage of the grain harvested, if the field was one everyone has contributed to; and it is
not unfair if society insists that your idea properly belongs to everyone, or simply declines to
protect it for you.

But the field might not be harvested optimally if too much is expropriated for society, and some
knowledge has even less incentive for 'harvesting' if the individual is not given some control over it.
I will return to this possibility of allowing ownership of knowledge in 'The Expansion of the
Commons', after dealing with another contractual attempt to go from a weak right to a more
substantial one.

Securing Societal Use Value by Contract.

A Fair Request for Compensation.

As mentioned in the section on contracts. Constricting Rights, in the previous chapter, there is a
societal use value, and it seems only fair to compensate those who contribute to society. But it has
also been shown earlier (in 'The Scarcity of Techniques' in the second chapter), that a 'payment in
full' is sometimes not even possible. Furthermore, information is never the product of any one
person or act of creation; a fair compensation is not equal to the total use value which society gains.
Additionally, it will often be the case that the improvement carries its own reward; the villager who
invents a new method for creating fire gains a significant benefit himself
But there is a class of knowledge which passes no immediate benefit unto its creator, and is still
beneficial for society and requires significant work and time to create. Examples would include
much art; fiction, poetry, music, etc. - and though we might prefer musicians who do not play for
money but for the joy of it, we probably still prefer that these individuals get to eat. Also
problematic is all research which is not immediately useful to the author, such as designing a new
nuclear reactor or highly theoretical theories and groundwork (probably including this paper). It
would be legitimate to try to acquire compensation for such contributed work; even though the
compensation need not be as large as possible or be equal to the full use value from every individual
in society.

Note that this is a 'weak' demand; nobody is being forced to work for anyone else, society is simply
neglecting to ensure payment for certain functions. The problem lies not with an author who is
being robbed of his novel, but an author who decides not to write a novel because he cannot get
paid. A just society does not have to meet his request that we ensure him payment, but it might wish
to do so for his sake and society at large. Meanwhile, society must ascertain that in the attempt to
supply these payments, no 'strong' rights are being violated, such as the right to a free language for
all.

The Inherent Damages of Restricting Contracts.

Coupled with the contract attempt from earlier, we can now try to establish a right to own
knowledge. Such an argument would base itself on the fact that one is protecting a legitimate
interest; a musician has created an album which a lot of people (will) enjoy, and he needs some way
to receive compensation for his time. If he enters contracts with every buyer that they not share it
further, he is only doing what he needs to do in order to get paid. The problem is, of course, that

Kristian Lund - Ownership of Knowledge Page 51/67

enforcing such contracts and such a system enables the musician or those acting on his behalf to
collect far more than a fair share, since there is inherently no free market on the exact same
information after we have restricted access to it. Furthermore, this also perpetrates a harm on those
who cannot afford the album (albeit rather trivial in the case of luxuries, the important factor here is
that the harm is done deliberately and with the intention that the person be deprived that information
in question). Such limiting contracts also have a detrimental effect on society; stifling creativity
because of a need to protect oneself from future legal disputes, research data which cannot be
copied and submitted to a second research group's test, which leads to less-than-ideal scrutiny and
use of research, etc.^°

It follows from this that allowing such rights to knowledge, whether through directly granting them
(as in copyright), making some sort of license possible (as with patents) or allowing contracts which
limit their use (one tactic involved in software EULAs), is not the securing of a truly 'natural' right,
but a way to enable creators to benefit from their fair claim to some portion of the use value. Such
an implementation cannot trump the rights of others, nor justify substantial harm; such a scheme
must ensure that no one gets more from the public, whether measured in rights, control or monetary
rewards, then they deserve. We can aspire to rewarding the village fire-maker or a researcher who
helps find a cure for cancer, but we cannot allow them to control and benefit from the resulting
inventions to the maximum degree possible, as such wealths would come from the pockets of
others.

The Existence of Alternatives to Restrictions.

In fact, the method we use for securing creators some payment must be the one which hurt the
public and future creators to the lowest degree possible. It thus becomes an open question whether
musicians, researchers, et al need any control beyond their already secured right to elect when and
under what conditions they will share their information, and whether they elect to do any work at
all. Interestingly, the truly liberal response would actually be to simply 'trust the market'; if someone
needs a cure for cancer, they will pay for people to work towards that goal (which, coincidently, we
already do at universities, government subsidised research, etc.)

The fact of the matter is that ownership, or other limited controlling rights, over the resulting
knowledge is not the only way motivate research, creativity, et al; numerous other models already
exist and work (Boldrin & Levine, 2002).'^' Historically, a patron-model has worked satisfactorily;
either through universities or societies which sponsors experts free research, or artists who found
patrons of the art to support or pay them during their work. Modern universities still has this model
as a basis, and many countries pay musicians and authors from a taxation scheme, based on the
actual use of their work. Such models are beginning to involve a voluntary element, with
micropayments over the net enabling one to easily pay a small amount for music or other works one
enjoys (one such music store even has the headline 'Already Stole It?' for those who wish to pay for
a service they have already received). This has been referred to as the Street Performer Protocol;
one asks for donations between performances. Inducement prizes are another model which is used
today for increasingly diverse projects; from the discovery of the longitude in the 17th century, to
current prizes for a global cure for greenhouse gases or just the development of extra functionality
on a piece of software one already has access to. Also a major business plan in use today is the sale

60 One notable example would be Guillaume Tena, a French computer security researcher who published enough
technical information to prove that a program did not perform as promised and was subsequently sued by its owners
and fined heavily. One hopes the citizens of France will be able to import such critical information from other
countries now that they dare not provide it themselves.
<http://news.zdnet.co.uk/itmanagement/0,1000000308,39183601,00.htm>

61 Boldrin, Michele and Levine, David K. The Case Against Intellectual Property' (March 2002). CEPR Discussion
Paper No. 3273. Available at: <http://ssm.com/abstract=307859>

Kristian Lund - Ownership of Knowledge Page 52/67

of service; after selling a technological product (or distributing it freely), a company will sell their
services with regards to maintenance and customisation - 1MB, Hewlett Packard and even
Microsoft, who pioneered and almost single-handedly introduced the idea that software can be a
product, now generates major revenue from selling support and service. A parallel to this in the arts
would be merchandise, book signings, public speaking and concerts where one 'cashes in' on the
fame of some already disclosed product which is reducible to a piece of information.
All these models can be seen to work, without requiring any harm to the commons of knowledge, or
the public which accesses it. If a society wants to levy a 'tax' through the loss of some (hopefully)
negligible rights and lesser harms to the public, it must do so from a belief that this approach better
guarantees creators their portion of the use value than the alternatives, which do not restrict and
harm. If such a benefit, or rather, minimisation of hurt to creators, cannot be demonstrated there is
simply no good reason not to let the market find a functioning way to create the goods which there
is a demand for

The Expansion of the Commons.

The Speed of Expansion as Guaranteeing Enough and As Good.

This leads us to the last attempt at insisting on a sufficient reading of Locke's 'enough and as good'
condition, again under a more 'ecological' view than taken in the second chapter. Convincingly, this
argument is based on a the requirement as sufficient; if no one is hurt by the overall strategy society
takes for the common of knowledge (but are in fact better off), then the appropriation and further
details of that strategy must be justified and fair. It would be hard to argue that something is unfair
if everyone is either helped or unharmed by it. The argumentation here becomes distinctly
consequentialist, and this is also the line of reasoning one commonly hears from those advocating
some sort of ownership over knowledge, from the U.S. constitution to current 'intellectual property'
advocates such as the RIAA, MPAA and similar organisations.

In the following, I will follow the argument as supplying justification to a natural right to own
knowledge, but this also includes a look at how society should 'tend to the commons'. As such, it
becomes very much about knowledge as a public good; it is not only something to which we have a
certain amount of inalienable rights, but also something which we hope is maximised. Just as it has
been argued (Nussbaum & Sen, 1993) that a certain minimum of education and other goods are
necessary for a full human life, the same argumentation also naturally goes that society should
further such goals whenever possible. The personhood reservations above can also be met with such
an approach; society acknowledges that certain rights, access to knowledge, etc. are all needed and
answers this by supplying the best possible commons overall. Consequently, the counterarguments
against this approach will focus on rights and demands which are not met in a model utilising
restrictions.

The argument is often heard in a very general form; that we should have copyright, patents, or
another kind of 'intellectual property' because this is better for the creators of knowledge, but also
better for society at large. To strengthen this and develop it as supporting a natural right, we can
adjust it to an argument that creators have a right to seek compensation for their time and seek some
part of the social use value in compensation, and that by granting them ownership of the knowledge
they supply us, we will create so powerful incentives for, and investments in, creating further
knowledge that the commons is overall improved. This is the dynamic approach promised in the
section on The Commons from the second chapter, it is also the view ultimately argued in Hughes,
1988.

Kristian Lund - Ownership of Knowledge Page 53/67

Implied in such an argument is a reliance on Sreenivasan, as it was unfolded earlier; the Lockean
provision that we must leave the commons in a similar or better condition is not so restrictive as to
disallow picking berries with a reference to the impossibility of picking that same berry. What we
must do is ensure a commons with roughly the same possibilities and qualities; as long as berry-
picking remains possible in the forest, I have not hurt anyone by taking some.
The argument is further bolstered in that it responds to the possible problem of the Tragedy of the
Commons. Though knowledge is not a field which can be overgrazed nor a reservoir offish which
it would hurt us to deplete, it would still be a 'tragedy' if humanity utilised significantly less than
possible of the knowledge available to us. 'Speeding up' the frontier of knowledge we have useful
access to across the landscape of all possible knowledge is an admirable goal, but care must also be
taken than the barriers between knowledge accessible to all and only to some privileged owners
does not lack too far behind, as it is the 'landscape' behind the former which determines whether
anyone is hurt or not.^^

Measuring the Speed and Comparing Incentive Models.

A variety of counterarguments can be made, I will focus on those which find fault with the
argument itself and then, in the next section, see if Hughes' response to such problems is
convincing. The argument posits that everyone will be better off if we enable ownership of
knowledge, but this overlooks the distinction between what knowledge humanity has access to in
total and how much of humanity has access to how much knowledge. In other words, the 'better
off -premise must be qualified further; it is a small comfort to those dying of AIDS that a cure exists
when they cannot afford it because it is proprietary knowledge. When artificial scarcity is
constructed and used to accumulate wealth for research, that scarcity necessitates a barrier between
knowledge we have and knowledge we use fully; as long as such a gap exists, we are committed to
some sort of consequentialist calculation where we hurt some people now to further the needs of
everyone in the long run. Moreover, we have to ensure that we are not favouring certain groups over
others; if the poor are always the last to gain the benefit of new developments, then our system is
systematically and consistently unfair. A similar argument can be made regarding future
generations; should we narrow down who can use a given class of knowledge because that will
allow an accumulation of resources which will benefit future generations?
This counterargument can be dealt with by admitting the utilitarian basis for the argument, and a
supporting premise that we are indeed better of in the end, despite immediate harms. The burden of
proof of such a statement is, of course, on those advocating ownership. However, when the damage
is negligent and does not directly interfere with anyone's inalienable rights, the argument can still
stand quite strong; cultural goods, literary luxuries and various artforms can be controlled with
trivial harm done to those who have to do without and strong incentives for creators. ^^

Another question is whether such motivation is necessarily for the better, especially with regards to
'luxuries'. Allowing ownership means that one can raise money for the creation of a cultural artefact,
such as a music album, by promising ownership or some percentage of the profits to someone
willing to invest now. This means that a system of ownership will primarily provide incentives to
whatever sells the best; it makes more sense financially to support a lesser-talented copy of some
enormously popular phenomenon than it does to gamble on something new with unknown market

62 The argument can also be made as a straightforwardly consequentialist one; we are better off if we allow ownership
of knowledge, so we should do so. The counterarguments below can also address such a formulation, with little or
no modification.

63 I return to certam consequences of this problem in the final paragraphs of the section, detailing specific problems in
such a justification for owning certain categories of knowledge.

Kristian Lund - Ownership of Knowledge Page 54/67

value. The amount of albums, books, posters, computer games, etc. in the stores is not the true
measure of cultural enrichment and diversity. Establishing a true yardstick for cultural goods is
probably not possible and certainly beyond this paper; but this does not mean we have to accept the
implicit premise that 'more is better' when 'more' rules out entire categories of art.
In fact, from the previous comments regarding free culture in 'Can a Proprietary Culture be Free?'
above, a convincing counterargument could be made^"* that we must be able to reference other
cultural artefacts freely to create the best possible next generation of culture. We need to be able to
reference, not only Shakespeare, but also Disney's latest movies; simply because the latter is is a
larger part of our cultural landscape today. Freedom of creation and creativity is being stifled today,
as a natural consequence of ownership; for instance, documentary film-makers are being threatened
by lawsuits from the owners of incidental music. Such lawsuits are not lone incidents executed out
of malice, but stem from a ubiquitous and simple wish or contractual obligation to get the most out
of the 'property' one has; and just having to worry about them hinders creativity.
Richard Stallman touches on this problem with regards to software, in an argument which can be
expanded to include any formal language use, and most research. In 'Why Software Should Be Free'
(Stallman, 2002) he compares the situation to one of toll roads; though we may raise more money in
such a way, toll booths are inherently ineffectual and another way to raise money for roads is
therefore preferable. The increased speed which the proposed incentive system supplies is not free;
it reallocates the scarce resource of labour towards the problem at hand. But the barriers it erects
cause harm in themselves; we would be better off maximising the efficiency of the labour which is
applied first, and then worrying about how much labour that is. When it comes to formal languages
such as math or software, efficiency is severely compromised whenever any barrier is erected; most
research is not much better off. Access to all results and techniques in any field is a tremendous
boon to any researchers efficiency, having to worry about patenting your own inventions and
sidestepping those of others contributes nothing to one's field but is an unambiguous loss of work
hours if nothing else.

Adding a System of Expropriation to Rectify Harms.

Hughes does touch on these problems in his section 'The Common and Ideas That Cannot Be
Granted Property Status' (Hughes, 1988), and suggests that some knowledge cannot be owned and
that other portions should be 'depropertized' when it becomes too socially damaging that it is
owned. In the following, I argue that Hughes overlooks just how much knowledge he would really
have to prohibit ownership of, and how a system of societal expropriation of formerly held
knowledge is inefficient and problematic for this same reason and others.
Hughes seems to believe that we can, on a case-by-case basis, decide not to award ownership or
'take it back' whenever it becomes too damaging to the commons. As his perspective is distinctly
utilitarian, this is no surprise; but the argumentation borders on the circular: We can allow
ownership of knowledge except when we cannot. Hughes gives little guidance as to how we should
handle such exceptions, and does not consider the drawbacks of such systems or their composition.
He does not detail where exactly this power is to lie; whether the courts, patent office or some new
entity will decide what must be expropriated for the greater good. Whatever is chosen, the system
will be fragile; lawsuits have actually been filed which could have resulted in the ownership of such
wide-ranging phenomena as a graphical user interface for computers. '^'^ Additionally, one failure of
the system, whether intended or not, could result in massive harm; Pythagoras could have owned

64 And has been, by Lessig and other free cuhure advocates; among them pubhshed authors:
Lethem, Jonathan. The ecstasy of influence: A plagiarism. Harpers Magazine, February 2007.

65 Joseph Myers, Casenote, Apple v. Microsoft: Virtual Identity m the GUI Wars, 1 Rich. J.L. & Tech. 5 (1995) <http://
www.richmond. edu/j olt/v 1 i 1 /myers.html>. )

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every building constructed had Hughes' system been in place at his time and failed just once.
In addition to such speculation, we can be sure that the system will in fact undermine itself to some
extend: If investors know that results can be expropriated by society following their invention, then
their willingness to invest will be lessened proportional to how important that discovery is. In fact,
if we rely entirely on such a system, we can be sure that the technologies and knowledge which will
benefit us the most will not be supported at all, except by some investor's serendipitous mistake. A
counterargument that expropriations would be followed by a financial settlement begs the question
of why we should not simply instate such a system of rewards for useful contributions to human
knowledge in the first place.

Irreparable Problems of an Ownership Model

Putting aside the consequentialist approach and refocusing on the natural rights with which this
paper is mainly interested, we have to ask whether a system of ownership will overstep certain
strong personal rights, not as singular accidents but systematically. What follows is a series of such
problems; ways in which rights may be violated and the commons hurt in unacceptable ways. I aim
to show that there are wide categories of knowledge in which we cannot allow ownership with a
reference to some possible gain by way of incentives, and that these are so encompassing as to show
that Hughes' suggestion is better reverted: We should not assume knowledge can be owned and then
provide for exceptions, but rather accept that most knowledge cannot be restricted without severe
damage to the public good; whether areas exist where we can consistently set up some restricted
ownership, and under which conditions, will be addressed in the conclusion of the paper.
The strongest case against ownership as improving the commons would be to show a
counterexample, a likely way in which the commons can be hurt by such a system. This is easily
accomplished with regards to research, both in techniques and knowledge of the world. One
example, touted as a stroke of tactical genius by the author of the piece, is given in (Rivette &
Kleine, 2000):^^^ patent lawyers decided which design for a new razor would best hinder
competitors, and goes on to discuss the method oi bracketing - when one is able to keep a
competitor from using their own invention by owning all patents which are necessary to utilise said
invention. Patent attorneys, CEOs, etc. know that the world of knowledge is an infrastructure of
roads; and they are buying, blocking and sublicensing roads in a vast zero-sum game which has no
inherent value, but has the direct consequence of blocking up avenues of research and usage. This
can happen with almost any knowledge belonging to the following three areas: techniques and
methods, formal language expressions and data about the world around us.
Hughes actually brushes upon this consequence, but does not address it: 'As long as complete
exclusion cannot or does not happen, ideas will be available to people in their own thoughts even
though these ideas already have become someone else's'. (Hughes, 1988) What is lacking from his
account is that restrictions on knowledge use actually stop people from 'reach[ing] the ideas on
higher branches' (ibid.); I cannot make or use an invention which you own a critical patent to, and
this hinders research directly. For instance, quantum computing may become the only safe way to
encrypt data in the future and a very small portfolio of patents would result in a complete choke
hold on the market. Hughes himself mentions that '...the Supreme Court ruled that Samuel Morse
could not monopolize the general idea of using galvanic current for long-distance communications,
although he could monopolize his particular process for exploiting the idea.' Had the ruling gone
differently, all telecommunications would be owned by one company, which had been free to
expand, research and, at the eve of the patent's expiration, file a series of contingent patents for all
the useful ways of communication through a wire. Medicine is a field renowned for such small
patentable changes to medicine which ensures a given product will never enter the public domain, at

66 K.G.Rivette & D. Kleine. 'Discovenng New Value in Intellectual Property.' In HBR, Jan-Feb., 54-66 (2000)

Kristian Lund - Ownership of Knowledge Page 56/67

least not in the form which a company has been able to make the known and popular one.
Even when such small bottlenecks of entry does not exist, a de facto monopoly can still occur
easily; by owning enough patents, one is able to crosslicense with other owners to obtain access to
techniques, etc. which others cannot, as well as perform research on areas blocked off to others -
hence putting oneself in a self-perpetuating lead compared to the non-owning competition. Such
crosslicensing allows a few companies to keep out competitors to the detriment of the customers, by
allowing mutual usage of patents without which no one else can enter the market. In effect, the
system of owning knowledge can create a medieval guild-system where one cannot produce a given
good or render a particular service without an agreement with the main players of the field.

This kind of harm is even more dangerous when it comes to formal languages, i.e. mathematics and
software, as explained above in 'The Need for Free Languages', where even a copyright can do
damage. There is only one optimal way to do or express something in a given formal language, and
the suboptimal ones run out quickly too. The harm done in such instances is never trivial, even in
the expanded reading expounded by Sreenivasan; knowledge is not comparable in the same way as
berries, grain and money is. There is no amount of algorithms, ideas or lines of code which will
make up for my inability to sort a list on my computer, name a specific prime or use a particularly
important example from formal logic - such harm is inherently irreparable. Judging whether a given
expression in a specific language will be (or even is) important or not is a difficult task, and the fact
of the matter will change as new ideas and expressions are found and used, become obsolete or
otherwise change, or whenever a change in real-world usage of the language in question changes.
Most any expression in an efficient formal language is critical for some use, especially seeing as
how a formal language's purpose is to be able to fully express all possibilities of meaning, with one
optimal for each. Additionally, its level of irreplaceableness is more or less identical to its value as a
monopoly, with the obvious drop in investor interest as the natural result previously mentioned.

Similar arguments can be applied straightforwardly to important data, as was applied to methods
and formal languages. If companies begin to own genes, one could conceivably control the cure for
cancer, if it is found, with no way for other actors to legally reproduce it. If one owned all
knowledge about cosmic ray intensity throughout the ages, no one could perform a carbon- 14
dating without your approval. Knowledge about the chemical properties of certain drugs would
completely retard entire areas of medical research, and give vast power to its owners. Such
monopolies and their inherent pricing schemes do not further the public good, but damages it, as
does the resulting segregation of knowledge among actors. Data has a synergy effect which makes it
more valuable the more it is aggregated; phone books are worth more if they are comprehensive and
the search for a particular genome sequence is easier if we have the full database - this added value
is irreplaceable and the loss of its value considerable.

Conclusion.

An Efficient Ecosystem.

It was shown, in the present chapter, that there is a common need for certain categories of
knowledge, which a just society must provide, or at least do nothing to restrain anyone's use of A
number of examples were given and shown to be necessary: the right to free languages, including
formal ones, the right to at least some ability to participate in one's culture and the right to certain
intellectual tools which have become an indelible part of one's self A last attempt to secure
ownership of knowledge though an actual or implied contract which abridges the natural rights of

Kristian Lund - Ownership of Knowledge Page 57/67

Others was also attempted, with the necessity of the contract ensured by a need to get paid some
rough equivalent to the use value which society has enjoyed because of your particular
contributions. It has been previously shown, in 'Abridging Others' Rights for Legitimate Reasons,
and Inherent Limitations' in the previous chapter, that such a necessity does not exist, except as a
weak right to some fairness, as long as no one is being forced to perform the work in question. It
was also shown that other ways to to acquire the gains of societal use existed and works, leaving a
restriction model with any side effects suspect. Lastly, the most common defence of 'intellectual
property' was married, so to speak, with the Lockean 'enough and as good' -provision - it was argued
that no one would be substantively hurt by restrictions on use, because those restrictions would
make the creation of knowledge speed up so much that everyone was better of There are serious
problems with this account, which were already hinted at in the second chapter's discussion of the
relevant provision; under 'A Necessary Precondition', it was shown that a given piece knowledge
cannot rarely be substituted with another - knowledge is numerically self-identical with its copies.
Moreover, examples were given of broad categories of knowledge, where such irreplaceable harm
would be apparent, were given. The only category lacking in this summation was that of data which
does not directly correspond to anything in the outside (or inside) world. It remains an empirical
question whether restrictions on such data would be harmful.

Kristian Lund - Ownership of Knowledge Page 58/67

Conclusion.

The Paper So Far...

Summary.

In this paper, I have tried to present the best case for any sort of ownership of knowledge. In the
chapter 'A Commons of Knowledge', the nature of knowledge and inherent problems with its
ownership was introduced, as was the basic Lockean framework for attempting to justify
appropriations. It was shown that the condition that we leave enough and as good could not be
satisfied, necessitating a view of some other provision as sufficiently justifying property. In the
following chapter, 'Personhood as a Labour Condition', this was attempted, but shown to be
unconvincing in securing more than a use right. A recurring argument that one could somehow
abridge other's rights by making them agree to certain contracts was shown to circularly employ the
premise that creators have a right to the resulting market value stemming entirely from such an
artificially created scarcity. In the fourth chapter, Personhood as a Necessity, it was shown,
however, that a right to use pertains not only to one's own creations, but to a whole range of
knowledge which one needs to function as human. This was shown to result, not in any variant of
ownership, but rather a series of rights to control and limit hurtful speech acts. Similar rights were
found to be in evidence in the following chapter. The Commons as an Ecosystem, where the
necessity of a free language, opportunities to interact with one's culture and free use of at least those
tools and techniques which cannot be divorced from one's own person. Consequently, a just society
cannot allow the abridgement of such rights - by ownership or otherwise. Finally, a classically
consequentialist approach was attempted as justifying the 'enough and as good'-condition and found
wanting, as knowledge is, by its very nature, not interchangeable.

Conclusions.

How, then, does the case for ownership of knowledge stand? A de facto right to one's privacy was
shown to establish a right not to share, and in the fourth chapter section 'Necessary Rights over
Knowledge' and the following chapter's 'A Necessary Infrastructure', this principle was extended to
encompass a a variety of rights: Control over one's private notes, which make up part of your
private thought processes (if nothing else, then in a morally analogous way). The right not to be
slandered or misrepresented, and the right to control the use of one's likeness; as ensuring that one's
autonomy as a social being is not unfairly restricted and harmed. In the same vein, we have the right
not to have our language limited and rendered less useful, as this would be harmful to our ability of
everyday, as well as critical and political, interaction. This extends to formal languages, which are
also abilities to communicate with and use the technology around us; any expression in one
necessarily collapses to a method of doing a particular something; if such building blocks of
meaning are restricted with copyright, it would quickly amount to a lock on a specific method,
whenever the number of languages is comparatively small and the exclusion right extends to
relatively small expressions. More or less all computers use the same symbolic language at the
lowest level of functionality, while music, mathematics and formal logic only have one notation;
owning an important expression in one of these languages would impair it irredeemably, and the
monopoly could easily be spread.

Certain other abilities cannot be taken from us either; if we cannot account for when a given
technique, certain data or a theory is being used, then it must have become part of us in a way that

Kristian Lund - Ownership of Knowledge Page 59/67

precludes control over it by others. Data about the natural world around us would also restrict usage
in possibly very harmful ways, and hinder basic and innovative capabilities.*^^ We also have a softer
right to be able to use and refer to our common cultural artefacts and trends; which has been
advanced as a further hurt created by copyright systems, as seen below.

These, then, are also the kinds of knowledge under which we cannot allow ownership, but only the
natural control needed for the continued and legitimate use. No one can own your ability to play the
guitar, nor the thoughts in your head. You may control how I use your picture, but nobody can
patent genetic information common to us all from his own DNA. Hughes' view that we can allow
ownership and then disallow it when it becomes too damaging to our rights and public concerns,
was criticised and should be reordered - one cannot allow ownership of knowledge, unless in cases
where it can be shown that this causes no overall harm.

There is no right to every bit of possible value which can be extracted from a given amount of
intellectual labour, and nobody needs to control other's use of their inventions as they are as free to
enjoy it as they were before it's diffusion. Only the above examples of control, which I must be
given to function well as a human can restrict our prima facie right to speak and do as we please,
but these are not true property rights. The only other candidate was some assurance that the natural
rights of others were not really hurt, at least not substantially so. As mentioned, this was shown not
to work for the larger part of knowledge categories: entire domains of capabilities and further
discoveries were shown to be inaccessible when an area and 'road' is blocked. Still, a few types of
real-world knowledge are still defensible.

Possibly Ownable Knowledge.

Trademarks.

One kind of possibly just legal category of knowledge is that of trademarks. In the chapter four
subsection 'Lies and Misrepresentation', it was shown that these are really an extended right to one
good name and reputation. Nobody is allowed to claim that someone else made a particular product
and sell it as theirs, and it seems unproblematic to allow people to register a trademark which will
allow them a shorthand for their brand name and make it easier to enjoy their reputation.
The only real problem with this is if the word or logo somehow obstructs cultural interchange and
easy communication. We cannot allow a trademark on the word 'milk' for a manufacturer of same;
this is easily managed. A similar problem occurs when opposite happens; when does a term enter
popular usage to such a degree that we must some expropriate it, and are we allowed to? People use
words like 'word', 'google' and 'xerox' for a word processing program, searching the net and
copying. This can probably be dealt with by Hughes' suggestion that we reserve the right to do so,
in exchanging for having helped the company in upholding their rights up until that point - the harm
is never immediate and neither is the company who has their trademark word removed immediately
harmed (people still remember that Google is a specific search engine, and that Xerox made the first
photocopier).

Non-formal Patents.

67 This is being attempted by the company Metabohte, who claims nobody can use the information in the following
sentence without a license (whether distributing it here would be equally illegal is unclear): Human levels of
homocysteine is related to the level of B-12 deficiency, one can test for one by testing for the other
<http://www.law.com/jsp/artrcle.isp?id=l 150967 1 17309>

Kristian Lund - Ownership of Knowledge Page 60/67

It was shown that patents and other exclusive control rights to a formal method or technique would
lead to a monopoly on performing a certain functions, which always leads to some amount of
irreparable harm. A patent on a mathematical technique prevents others from doing what that
technique does, because within formal languages, there is only one way to do something. Although
there can be different instantiations of a technique, these are effectively the same whenever they
give the same results on the same input (if not, no patent or similar right would amount to anything,
as any number of slight variations would constitute a 'new method').

This door still remains open, so to speak, on non-formal patents and similar rights over methods and
techniques. Here, Hughes and I would agree that we cannot allow a patent on one of a handful
possible techniques to make a fire. I, however, believe that the process of awarding a patent should
be far more thorough in its initial checks against resulting harm, and that this can be justified and
done systematically. The first argument for this is that the awarding of such exclusive ownership is
not a natural right the inventor has, at least not before it has been established that the monopoly
does not interfere with the natural rights of others. The awarding of a patent is more like the
government sanctioning of a corporation or the privatisation of a given function - like the Dutch
East India Company was given the right to trade and wage war in a given area, a private entity is
allowed the exclusive use of a part of the 'road system' by which we access the world of knowledge.
Privatisation is, in effect, curtailing some of the controlling rights of citizens and awarding them to
a private company, in the hope that they will manage them better. Incorporating such a business also
means, of course, granting the profits to the shareholders instead of the state, again with loss to the
public. A patent is a similar trade-off; citizens are robbed of their freedom to do a particular thing in
a particular way, and the riches it would entail if all of society were able to employ the technique.
When attempting to use the expected, and hopefully larger, payoff as a fulfilling Locke's 'enough
and as good'-condition, we should look to Sreenivasan again: Are the harms and the benefits
comparable? With regards to the monetary and 'efficiency' riches garnered, it is clear that
comparisons are relatively easy - does the tax on profits and enhanced efficiency rise enough to
make up for the loss of all the profits, do the trains run on time? The question is harder to answer
when it comes to rights; we can probably agree that whatever decisions have been rendered unto the
board of company controlling train-traffic in my region were not ones I had all that much political
interest or clout in before the privatisation, but this is less clear when it comes to rights. Certain
gene tests have been patented, meaning that I cannot authorise doctors to test for a gene which
resides in my own body - no amount of increased wealth can make up for this loss of my personal
freedom.'^'* Like privatisations of important societal functions, patents should be granted only under
condition that harm is not done to the public; we allow a company to run our trains or buses and
profit from this public service, under the condition that they follow certain rules. Just like a bus
company is not allowed to raise prices so high as to restrict usage by the poorer half of society,
patents should be bound by similar demands that they do no harm in raising prices beyond the
capacity for the poorest to pay, within the entire area where they are legally binding.
Furthermore, the area of knowledge which is effectively chartered must be effectively used and
improved, so as not to violate the Lockean restrictions against waste; a just system cannot allow the
existence of 'patent trolls' who only own specific areas of knowledge in order to sue, or threaten to
sue, companies who attempt to actually use or improve upon the knowledge in question. In fact, a
positive demand that the 'land is tilled' would make sense; no one can justify the fencing in of an
area just to let it remain unused - if certain knowledge, be it data or techniques, is not used for the
betterment of all while that possibility exists and there are people willing to do the work, there is no
justification for leaving it dormant. The harms following the intended 'acceleration' must, as was
shown, be repairable by some other means, but the increase in research and development must also

68 Crichton, Michael. 'Who owns your genes?' In International Herald Tribune (February 13, 2007). Available at:
<http://www.iht.com/articles/2007/02/13/opinion/edcrichton.php>

Kristian Lund - Ownership of Knowledge Page 61/67

be at least as great as the exchangeable losses.

For a patent to be just, it must be shown that it is at least likely to encourage extra research,
diffusion of knowledge, etc. comparable to the rectifiable harms it causes. At least two things are
important to remember, related to such assurances. First of all, industry methods have now become
so large, fast and efficient, and markets so huge, that a first mover advantage on a new product or
functionality is very desirable in itself, leaving doubts as to whether such incentives are necessary
for the continued advance of the sciences, especially considering the right we have to keep inner
workings and development secret. Secondly, the incentives and their purported acceleration of the
'speed of progress' are zero-sum in nature; when a company decides to hire people to do research for
its own monetary benefit, it is paying money and those people are not doing anything else while
employed (not to mention the overhead of protecting said rights, the 'tollbooths', if you will). This
may very well be a good thing, and certainly is if we want more people to do research than without
the system, but the benefits of an open system where all knowledge is free are not zero-sum. There
is a huge synergy effect in giving e.g. every programmer all the basic tools he needs, as well as the
access to every improvement his peers have wrought - allowing everyone to work at something
different instead of recreating the locked-up inventions of others. In such a model, no geniuses are
lost to any art because they never had the opportunity to start; the entry to begin using a skill
becomes zero, as does the waste of reinventing. The speed boost resulting from patents must be
shown to 'overtake' this advantage.

'Thin' copyright.

While formal expressions and sufficiently small amounts of information (e.g. '~(A ^ ~B)' or phrases
as short as 'How's your blackout?') have been shown to be unownable, larger and especially
creative, amounts of knowledge might fare better for several reasons. Firstly, there is often more
work involved in creating a lengthy expression, as well as personal commitment and identity.
Hence, there is a greater, but still 'weak', demand that this is compensated, and certainly more
legitimacy lent to attempts to do so by contract with society or individuals. There is also a more
convincing case to be made for the claim of 'the creative genius'; that the knowledge is not 'lost' to
anyone, because it was never accessible to anyone but its creator. Even more convincing is the fact
that a creative work has little or no inherent value to oneself; whereas the programmer or inventor
gives himself new opportunities directly, the author or musician has not improved his own life
particularly from the creation of a work.*^^

Certain restrictions would still pertain to such ownership. It can never be perpetual, because this
would restrict the use of an unknown area of the given field's cultural expressions; the lifetime of
the author is a convincing maximal term. For the same reasons, it cannot be total; others must be
allowed fair use such as quoting and referring, or we would have lost cultural influence and
expressional power. In the same vein, the use of parts must be allowed; for formal languages, this
would be individual lines of code or expression, for pictures it might be the composition, motive or
'theme' and a similar fragmentation can be made with books, music and similar arts. While we can
allow an author to be the only one to publish his book, we cannot keep others from using themes,
plot, character types or turns of phrase, just like we cannot award the idea of a jazz solo or
particular piece of a melody to a musician. Additionally, we should be wary of allowing artist or
their representatives to earn significantly above the estimated use value and/or time spent; the
market value would be, as has been shown, artificially inflated to a potentially very high degree by
awarding monopolies - there is no reason we must allow artists to earn everything humanly possible

69 Although not entirely true, the important thing is that there is no immediate practical or monetary benefit to make it
up for lost time, and man cannot, unfortunately, live off words alone.

Kristian Lund - Ownership of Knowledge Page 62/67

from a privilege we furnished them with, when the cost is passed onto us all.
The basic thing which we could consistently allow, then, is the right to control and thereby profit
from a specific expression in its entirety. Thus, an author would be the only one allowed to
authorise printing and selling, and the same would go for music, software, movies, etc. In fact, there
is always a 'strong' right to protect creators as the sole monetary beneficiaries. Even though their
connections to the work does not supply them with an absolute exclusive right, others have no
justification whatsoever for making money off their work, whereas the creator has a legitimate
appeal in asking for some of the societal and individual use value. This is simply a restriction that
others not take advantage of you; it is on par with the previously discussed personhood rights. The
question is whether we, as a society, should enforce some degree of control rights and resultant
scarcity, in order to furnish creators with incentive and the money we feel they are entitled to -
especially when that price is fixed by monopoly and supplied by people who have an existing
'strong' right to it.

The Questionable Nature of 'Intellectual Property".

The 'Necessity' of Incentives.

The question of whether incentives are necessary for the production of creative and intellectual
works is, in the end, an empirical one; and as such, beyond the scope of this paper. If it can be
shown that invention would be seriously retarded were companies not given patents with a certain
lifetime, then a model of patent-issuance which conforms to the above demands on such a system
would be desirable and justifiable as doing no overall harm. If it cannot be shown, then such a
system should be avoided. The same goes for a thin system of copyright; if the removal of all
copyrights would make production of cultural artefacts plummet to such a degree that everyone will
be worse of, culturally, then we should keep it (although it should still be within the parameters
described above, so as not to interfere with other, more pressing rights). I do not presume to prove
either question one way or another, but will merely point out a few relevant points.
First off, technical innovation has been shown to be possible without exclusive control. A perfectly
workable, and in many cases preferred, computer operating system (GNU/Linux) has been created
by contributions to which their authors expressly signed away all control rights (except the
provisions that others never assume any such control).'" Inventions and innovations have been made
throughout human history, with or without subsequent protection; often spurred on by prizes or
government funding and tenure. The arts have been doing fine without copyright for many years,
and people still buy CDs, visit the movie theatre, go to museums, etc. despite being able to
download almost everything for free (and rarely having qualms about it). Artists get paid on tour,
through merchandise and by donations while the cost of creating movies, music, etc. has plummeted
in later years. Increasing amounts of software is sold by subscription to customer service.
Ownership or control rights over knowledge should be given only when such models fail, in those
categories where it can been shown to be necessary for sufficient incentives, and only with the
strength and length needed.

Perspectives.

In fact, such new models are cropping up already. Both as bounty systems and sales of service
around the free software which is becoming increasingly popular, and as a way for artists to sell the

70 If not for the legally protected secrets kept by my laptop's manufacturer, which I do not have the technical skills to
work around, I would have used this system to write the present paper

Kristian Lund - Ownership of Knowledge Page 63/67

ideas that record companies and movie studios will not invest in. Also interesting is, of course, the
fact that Newton, Shakespeare and Bach did not hold any ownership of their knowledge but
managed to do quite well for human culture and themselves regardless. This raises a final
interesting problem, which is that the overwhelming majority of any new invention or artistic
expression is indebted to countless years office cultural and scientific interchange, as was made
clear in the previous chapter under the heading 'Who Has a Right to the Full Societal Use Value?'.
This presents a huge problem for anyone who wishes to go from such a system office culture to a
proprietary one: All knowledge up to the first appropriation was free; it and its contingent
knowledge potentially everyone's. When appropriating the first idea, this was done from the free
commons; if in no other way, then by using the free language and the concepts in common use.
How then, does it become fair to take the entire result from the commons? There is no justification
for taking more than is put in, and complete appropriation gives nothing back - this would be
comparable to use a given society's roads but neglect to pay taxes.

It was shown in the previous chapter that the commons is already an ecosystem with a complex
infrastructure, that is, a sort of public good already in existence before we even begin to arrange for
it.^' If we enjoy the freedom and opportunities it gives us, then we also owe it to the commons and
its other users not to leave it worse off. I have not heard any counterarguments that one's proximity
to the result should somehow make one the owner, while free and common trust of the vast majority
of any 'new' idea is somehow irrelevant. Only a (correct) societal decision to help foster creativity
could justify such a move to a proprietary model.

In the end, the question of a natural right to own knowledge comes down to a 'yeah' and 'nay'
position. I believe I have defended the latter, leaving only pragmatic considerations as justifiably
forming legal barriers around knowledge. If we were to take the former position serious, then the
advancement of human civilization so far has been an aberration; every inventor, musician and
writer has been either generous to a degree bordering on insanity, or have been systematically
robbed by an unjust society. Only the lucky few who are today protected by patent law, copyrights,
distributors and their lawyers have any hope for justice...

I believe that it is the current concept of 'intellectual property' which is deviating from the norm,
and not the rest of human history. This is based on a belief in the individual as the creator, not
accumulations of capital. That the individual creator is basically interested in sharing his or her
idea; and that other models of compensating and structuring such collaborative work can be as
good, if not better, than proprietary models.

This point has already been proven by the Free Software movement, where the unusual idea of
owning knowledge and its chilling effects first inspired effective political activism. I find comfort in
the fact that important founders of the movement, such as Stallman and Moglen, are themselves
hackers^^ and thus intimate with the need for free research and thrill of creation for its own sake;
this may lend credence to their belief that research will continue incrementally without property
relations. I also find it interesting, philosophically; the approaches which stress the absorption of
our surroundings and knowledge into ourselves, whether in an ontological sense, as with Heidegger,
epistemological as with Clark, or if only in the exploration of humans as learning neural nets, may
all find support from the fact that it was hackers who lived and breathed a language and way of
thinking (called UNIX) who were alerted to the fact that the language was being damaged by
ownership relations, both socially and internally. They have now, with the GNU General Public
License and voluntary contributions, built their own free language, not surprisingly in the image of

71 The GNU General Public License, Creative Commons licenses, etc. are all existing legalities aimed at arranging for
such a commons, protected from harm by disallowing exclusive appropriation.

72 In the original 'MIT sense': a tinker who tries to make things work in new and exciting ways. Not in the Hollywood
sense of someone who destroys computer systems.

Kristian Lund - Ownership of Knowledge Page 64/67

the old (fondly naming it GNU's Not UNIX) - the question remains whether human culture and
progress will be owned or set free.

Kristian Lund - Ownership of Knowledge Page 65/67

List of Sources.

The list includes a all titles mentioned in the paper, as well as a few others which served as
background reading. The former have abbreviations associated and appear at the top. News items of
relevance are not included here, but cited in their respective footnotes.

Locke, John. Second Treatise of Government. Hackett Pub Co Inc; 1st ed edition (1690).
(Locke, 1690)

Justin Hughes. 'The Philosophy of Intellectual Property', Georgetown Law Journal (1988).
(Hughes, 1988)

Hughes, Justin. The Personality Interest of Artists and Inventors in Intellectual Property. 81 Cardozo
Arts and Entertainment Law Journal 248 (1998).
(Hughes, 1998)

Fisher, William. 'Theories of Intellectual Property.' In New essays in the Legal and Political Theory
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